Section F – General - 1Cyber Pty Ltd

PRIVATE AND CONFIDENTIAL

Section F – General

Relationship with Customer and Third Parties
1. General
  1. The Contractor acknowledges that other Providers provide services to the Customer. The Contractor shall at all times cooperate with other Providers in the course of or in connection with fulfilling its obligations under the Contract (including as required in the Transition Plan, Systems Transition Plan and Attachment “Transition Out”), the provision of the Services and the services provided by other Providers. Where directed by the Customer, the Contractor shall, at reasonable cost to the Customer list on Attachment “Charges”, provide assistance to other Providers as required by the Customer. This assistance and cooperation will include providing access to equipment, software, services and facilities and providing information, documents and instructions regarding the operating environment, system constraints, protocols, interfaces and other operating parameters.
  2. Subject to the remainder of this clause, where the Contractor has an obligation to the Customer under the Contract, it will remain liable to fulfil that obligation in full, notwithstanding any action or omission of any third party or any Provider.
  3. Where required by Attachment “Maintenance Services” in relation to the Maintenance Services, Attachment “Hosting Services” in relation to the Hosting Services, or where the Contractor is nominated by the Customer as a lead provider of a service, the Contractor will have complete (“end to end”) responsibility for that service, including taking all reasonable steps to manage effectively the obligations of the Customer and/or other Providers in relation to that service. Except as provided in the following provisions of this clause, that responsibility will not be affected by any failure of the Customer or a third party to meet their obligations in relation to the service regardless of whether the third party is another Provider or a sub-contractor of the Customer with whom the Contractor has no contractual relationship. The Customer agrees that the Contractor shall have no liability under this clause where the Contractor has discharged its obligations to manage the other Provider but that Provider fails to perform its obligations.
  4. To the extent that the Contractor is liable for any failure to fulfil any of its obligations under the Contract pursuant to Attachment “Service Levels” but believes that its liability under Attachment “Service Levels” is due (in whole or in part) to another Provider or the Customer, the Contractor may submit with its invoice a brief submission explaining:
    1. why the responsibility lies with the Customer or other Provider; and
    2. how the Contractor has wholly discharged its responsibilities under this clause.
  5. The Customer shall, acting reasonably, notify the Contractor whether it accepts or rejects a submission made under clause before paying the invoice to which the submission relates. If the submission is accepted:
    1. the Customer will not make any deduction (or will proportionately reduce the deduction depending on the level of acceptance of the submission of the Contractor) pursuant to Attachment “Service Levels”; and
    2. the Contractor will have no liability under Attachment “Service Levels” for the failure to fulfil the obligation giving rise to the liability under Attachment.
  6. If the Contractor’s submission is rejected, the Contractor remains liable in respect of the default.
General Responsibilities of the Contractor and Customer
1. General
  1. Each party will:
    1. if, and to the extent, specified in the Contract Details, hold meetings (including meetings relating to planning, review and issue resolution) as necessary and report to the other on a regular basis in order to keep the other fully informed of the progress of work required under the Contract; and
    2. perform its obligations and responsibilities by the dates specified in the Contract.
2. Obligation
  1. Subject to the remainder of this clause, where the Contractor has an obligation to the Customer under the Contract, it will remain liable to fulfil that obligation in full, notwithstanding any action or omission of any third party or any Provider.
Specific Responsibilities of the Contractor
1. Customer Requirements
  1. The Contractor will ensure the Services and Products comply with the Specifications. The Contractor will comply with all reasonable directions given by the Customer in discharging these obligations.
2. Facilities and Assistance
  1. To enable timely progress and completion of the Contract, the Contractor will:
    1. subject to any stipulation in the Contract Details, establish and maintain all necessary facilities for the effective conduct and management of its responsibilities;
    2. record any material changes in relevant facilities or procedures and make this record available to the Customer on request or as otherwise specified in the Contract Details; and
    3. provide all reasonable assistance required by the Customer.
3. Sourcing from Government Contracts
  1. Where the provision of any Services or Products requires services or goods to be sourced from third parties, unless the Contractor is specifically directed, the Contractor will source such services or goods at its own discretion.
4. Documentation
  1. Notwithholding that Software Documentation are owned by each Software Vendor the Contractor on request will provide documentation, publications and aids relevant to any Service or Product are:
    1. of a reasonable standard in terms of presentation, accuracy and scope;
    2. the most current, accurate and up-to-date versions available at the date of the Contract or date of delivery or Acceptance (whichever is later) of the relevant Service or Product; and
    3. published in English with all key terms, words and symbols adequately defined or explained; and
    4. in sufficient detail and accompanied by adequate explanation to enable a reasonable person suitably trained in use of the System to utilise the full functionality of the System, as the case may be.
    5. can be provided as a reference to the Software Vendor’s online documentation.
  2. If any documentation required under the Contract is revised or replaced for any reason, the Contractor will supply the Customer with revisions or replacements at no additional cost to the Customer.
Training
1. General
  1. On request, the Contractor will provide the training as specified in the Contract Details, at the hourly rate specified in Attachment “Charges”.
Site Specification
1. General
  1. To the extent specified in the Contract Details, the Contractor will provide the Customer with particulars of the implementation and environmental requirements of a Service and/or Product. The Customer may accept such requirements and prepare the site accordingly pursuant to this clause “Training” and clause “Site Preparation”.
Access to Customer’s Premises
1. General
  1. The Customer will provide the Contractor with access to the Customer’s premises and any other site as specified in the Contract Details to enable the Contractor to fulfil its obligations under the Contract. Access may be temporarily denied or suspended by the Customer, at its sole discretion. Where access is temporarily denied or suspended by the Customer (except in circumstances where access is temporarily denied or suspended due to an investigation into the conduct of the Contractor’s Personnel), the Contractor will be entitled to reasonable extension of time to complete any obligations which are directly and adversely affected by the denial of access. Without limiting the foregoing, the Customer will, following a temporary denial or suspension of access, permit a resumption of access as soon as reasonably practicable.
  2. The Customer will bear the cost of delay resulted from restricted access pursuant to this clause “Charges”.
  3. The Customer will indemnify the Contractor for delays resulted from restricted access pursuant to this clause “Service Levels”.
Insurance Requirements
1. General
  1. The Contractor will ensure that, throughout the term of the Contract, it is insured with, or is the beneficiary under a policy with, a reputable insurance company with respect to the types of insurance specified in the Contract Details having the minimum cover specified in the Contract Details.
  2. The Contractor will, on request, produce to the Customer satisfactory evidence that the Contractor has effected and/or renewed a particular insurance policy or that the Contractor continues to be a beneficiary under a particular insurance policy.
  3. The Contractor must, and must ensure that its Personnel, as soon as practicable, inform the Customer in writing of the occurrence of an event that may give rise to a claim which may materially affect any insurance effected by the Contractor under the Contract and must ensure that the Customer is kept fully informed of subsequent action and developments concerning the claim.
Anti-discrimination
1. General
  1. The Contractor agrees to comply with its obligations, if any, under the Equal Opportunity for Women in the Workplace Act 1999 (Cth). The Contractor agrees not to enter into a subcontract with an entity named in a report tabled in Commonwealth Parliament by the Director of Equal Opportunity for Women in the Workplace as a supplier that has not complied with that Act.
  2. The Contractor further agrees to comply with such other State or Commonwealth legislation relevant to anti-discrimination as may be relevant to the Contract.
  3. The Contractor agrees to use its reasonable endeavours to provide employment opportunities to Aboriginal and Torres Strait Islander people where there are positions available and there are Aboriginal or Torres Strait Islander people available with suitable qualifications and expertise.
Occupational Health and Safety
1. General
  1. The Contractor agrees, when using the Customer’s premises, to comply with all reasonable directions of the Customer, including but not limited to documented procedures relating to occupational health, safety and security in effect at those premises. This obligation extends to all procedures which are notified to the Contractor by the Customer or which might reasonably be inferred by the Contractor in all the circumstances.
  2. In addition to the requirements of this clause, the Contractor agrees that, when working on the Customer’s premises, it will comply with all applicable Commonwealth, State and local government laws, regulations and procedures relating to occupational health and safety.
Maintenance of Records
1. General
  1. Unless specified to the contrary in the Contract Details, the Contractor must at all times maintain full, true, and up-to-date accounts and records relating to the Contract. Such accounts and records must:
    1. include appropriate audit trails for transactions performed;
    2. record all receipts and expenses in relation to the Services performed for and Products provided to the Customer;
    3. be kept in a manner that permits them to be conveniently and properly audited;
    4. be drawn in accordance with any applicable Accounting Standards;
    5. in the case of any Service performed on a time and materials or cost plus basis, identify the time spent by the Contractor’s Personnel in performing that Service; and
    6. be made available to the Customer as required for the performance of the Contractor’s obligations under the Contract.
Security
1. General
  1. The Contractor acknowledges that it must:
    1. as appropriate, inform its Personnel of the provisions of any legislation, policies and procedures relating to secrecy and security which are listed in the Contract Details. The Contractor further acknowledges that, prior to being granted access to documents, materials or information pursuant to the Contract, any such Personnel may first be required to provide the Customer with an acknowledgment that he or she is aware of any applicable legislation or security instructions. Nothing in this clause excuses compliance by the Contractor or its Personnel, with any applicable legislation;
    2. comply with such other State or Commonwealth legislation, policies or procedures relating to matters of security as may be specified in the Contract Details; and
    3. comply with any specific security requirements specified in the Contract Details.
Data Security
1. General
  1. The Contractor must:
    1. comply with all Customer data security requirements, as specified in the Contract Details or otherwise notified by the Customer, in respect of access to and use of data (including Customer Data), in addition to any statutory obligation relevant to data security;
    2. subject to any more stringent requirements imposed pursuant to this clause, prohibit and prevent any person who does not have the appropriate level of security clearance from gaining access to data; and
    3. notify the Customer immediately and comply with all directions of the Customer if the Contractor becomes aware of any contravention of the Customer’s data security requirements.
Security Acknowledgment by Contractor
1. General
  1. The Contractor acknowledges and agrees that:
    1. the Customer holds and deals with highly sensitive information;
    2. the Customer is concerned that such information is not improperly used or disclosed contrary to the Contract or any laws; and
    3. use or disclosure of such information contrary to the Contract may constitute a breach to which clause “Termination” applies.
Compliance with standards and codes
1. General
  1. The Contractor must, in carrying out its obligations in the Contract, comply with the policies, procedures and standards specified in Attachment “Policies, Procedures and Standards”
Protection of the Customer’s System
1. General
  1. The Contractor must not damage, corrupt or in any way degrade the Customer’s System, and must comply with all security requirements specified in Attachment “Security Requirements”, in respect of access to and use of data, in addition to any statutory obligation relevant to data security.
  2. In addition to the requirements set out in Attachment “Security Requirements”, to the extent that the Contractor has access to the Customer’s System in the course of providing a Product or Service, the Contractor must:
    1. take all reasonable care in utilising and operating the Customer’s System, observing all security procedures and work practices identified in any standards or codes referred to in Attachment “Policies, Procedures and Standards”;
    2. not interfere with, disrupt or cause any damage to the Customer’s System;
    3. ensure that the Customer’s System is protected from unauthorised access and use, misuse, damage or destruction by any person; and
    4. only access the Customer’s System for the purposes of providing the relevant Services under the Contract.
  3. If a Virus is introduced into the Customer’s System as a direct result of the provision of Services or Products, the Contractor must, at its own expense, immediately remediate the Virus and reinstate to the extent possible, the affected data or applications.
Disaster Recovery and Protection of Customer Data
1. General
  1. Without limiting the Contractor’s other obligations under the Contract to provide disaster recovery and business continuity services (if any), the Contractor shall ensure that it has in place by the time specified in the Transition Plan a disaster recovery plan that will satisfy and ensure that the requirements for disaster recovery are met where “Attachment – Maintenance Services – Backup Service” is subscribed.
  2. The Contractor shall ensure Customer Data remains free of any lien, charge or other encumbrance of a third party.
  3. The Contractor shall make backup copies of Customer Data in accordance with Attachment “Maintenance Services” in relation to the Maintenance Services, Attachment “Hosting Services” in relation to the Hosting Services. The Contractor shall store such backup copies in accordance with the backup specifications and for the period specified in the relevant Service descriptions in those Attachments.
  4. If any Customer Data is lost, destroyed or altered whilst stored or used by the Contractor or otherwise during the provision of the Services, the Contractor shall notify the Customer immediately and shall take all practicable measures, regardless of cost, convenience or technical difficulty, to immediately restore the Customer Data without additional charge.
  5. The Contractor shall ensure that the Customer has both electronic and physical access to Customer Data whilst it is in the possession or under the control of the Contractor at all times. Such access must be available upon reasonable notice and at no charge.
  6. The Customer’s rights under this clause are in addition to all other rights the Customer may have under the Contract or at law.
  7. For the avoidance of doubt, if, after the Hosting Commencement Date, there is a failure of the System and any of the Customer’s data, programs or files cannot be retrieved as a direct result of a failure prior to the Hosting Commencement Date which was not the fault of the Contractor, the Contractor shall have no liability to the Customer for a breach of the requirements.
Specific Responsibilities of Customer
1. Customer Resources
  1. The Customer will provide the resources specified in the Contract Details and Attachment “Maintenance Services” and Attachment “Hosting Services” (to the extent applicable).
2. Facilities
  1. The Customer will ensure that:
    1. any facilities (including items of equipment and software) which it makes available to the Contractor will comply with the standards (if any) set out in the Contract Details; and
    2. facilities made available to the Contractor will be maintained in the manner specified (if at all) in the Contract Details.
  2. If a facility which is provided by the Customer under this clause fails at any time to meet the requirements specified in the Contract Details, then the Contractor’s sole right (subject to any other right provided for under any applicable legislation), and the Customer’s liability in respect of that failure is to request that the Customer promptly take reasonable steps to ensure that the facility meets those requirements as soon as reasonably practicable.
3. Site Preparation
  1. To the extent specified in the Contract Details, the Customer will be responsible for site preparation to enable delivery and implementation of a Product and/or the performance of a Service.
4. Access to Customer’s Premises
  1. The Customer will provide the Contractor with access to the Customer’s premises and any other site as specified in the Contract Details to enable the Contractor to fulfil its obligations under the Contract. Access may be temporarily denied or suspended by the Customer, at its sole discretion. Where access is temporarily denied or suspended by the Customer (except in circumstances where access is temporarily denied or suspended due to an investigation into the conduct of the Contractor’s Personnel), the Contractor will be entitled to reasonable extension of time to complete any obligations which are directly and adversely affected by the denial of access. Without limiting the foregoing, the Customer will, following a temporary denial or suspension of access, permit a resumption of access as soon as reasonably practicable.
Acceptance
1. Application
  1. Except to the extent specified otherwise in the Contract Details, this clause “Acceptance” applies to all Services and Products provided by the Contractor under the Contract.
2. Testing of Products and/or Services
  1. As part of the Services, the Contractor will conduct testing of the relevant Product and/or Service to verify that they operate in accordance with the relevant Specifications which includes conducting the tests allocated to it in Attachment “Acceptance Tests”. To the extent specified in Attachment “Acceptance Tests” and otherwise as reasonably requested by the Contractor, the Customer will provide materials and facilities reasonably necessary for the conduct of the tests, including power, environment, consumables and data media.
  2. The Contractor will remedy any Defects discovered during its testing under this clause “Testing of Products and/or Services” until it is satisfied that the Product and/or Services operates or conforms with the relevant Specifications.
  3. The Customer may have an observer present during the Contractor’s testing under this clause “Testing of Products and/or Services”, who may participate in the testing and require the Contractor to conduct such additional tests that they consider are reasonably required (at the Customer’s cost specified in Attachment “Charges”) to ensure that the Specifications have been met, or if he or she is not satisfied with the testing that is carried out. The Customer agrees that any additional testing conducted under this clause must be conducted within a reasonable timeframe.
  4. When the Contractor is satisfied that the Product and/or Service complies with the relevant Specifications, it will promptly notify the Customer.
3. Customer Acceptance
  1. After receiving a notice from the Contractor under clause “Testing of Products and/or Services”, the Customer will undertake tests of the Product and/or Services, as set out in Attachment “Acceptance Tests (b) (iv)”, or, if no tests are specified, such tests as it considers necessary to determine whether the Product and/or Services comply with the relevant Specifications (‘Acceptance Tests’). If the Customer requests, the Contractor will promptly provide the Customer with reasonable assistance (including by providing suggested user acceptance tests) to conduct the Acceptance Tests, at the Customer’s cost specified in Attachment “Charges”. The Contractor will use reasonable endeavours to confirm to the Customer that the Acceptance Tests proposed will demonstrate compliance by the Solution with all the requirements in the Customer’s Specification.
  2. The Customer will notify the Contractor of any Defect it discovers during the Acceptance Tests. Upon receiving a notice under this clause “Customer Acceptance”, the Contractor will rectify such Defects as soon as practicable, and, in any event, within the period specified in Attachment “Acceptance Tests”.
  3. After the Customer has completed the Acceptance Tests, the Customer will, within a reasonable time, either:
    1. advise the Contractor that the Customer accepts the Product and/or Services and issue a Certificate of Acceptance for the relevant Product and/or Service; or
    2. notify the Contractor that the Customer does not accept the Product and/or Service.
  4. If the Customer uses the relevant Product in a production environment for production purposes but has not provided any notification to the Contractor under clause “Customer Acceptance (c)” within a reasonable time, then the Contractor may notify the Customer that Acceptance of the Product will be deemed unless the Customer ceases to use the Product in a production environment for production purposes or serves a notice under clause “Customer Acceptance (iii) (b)” within 5 days. If the Customer does not do so, then the Customer shall be deemed to have accepted the Product.
4. Failure
  1. If the Customer concludes that a Service and/or Product has failed an Acceptance Test, the Customer must set out the basis of this conclusion in writing. Subject to consideration of any explanation provided by the Contractor in respect of the failure, the Customer may:
    1. waive the requirement for the Acceptance Test in question to be satisfactorily completed;
    2. require that the Contractor conduct further reasonable tests at the Customer’s expense, such tests to be satisfactorily completed within the period specified by the Customer. In determining the period, the Customer shall act reasonably, having regard to the Project Plan and the Customer’s overall requirements as to timing unhindered by 3rd Party’s participation and response (if any). The Customer will then re-conduct its Acceptance Tests and, if the Customer is satisfied that the Product and/or Service, as the case may be, operates and conforms with the relevant Specifications including, in the case of Upgrade Services, the Design Solution, it will accept the Product and/or Service by issuing a Certificate of Acceptance;
    3. conditionally accept the Service or Product, subject to the Contractor agreeing to deliver a permanent work-around or to otherwise rectify any outstanding deficiency within a set time frame; or
    4. subject to the Customer having provided the Contractor with at least one opportunity to conduct further tests pursuant to this clause, reject the Service or Product concerned, whereupon the Contractor will be in breach of the Contract. Without limiting any other right or remedy which may be available in these circumstances, the Customer may require the removal of the rejected Product or any materials associated with the rejected Service at the cost of the Customer and shall be liable to pay any outstanding sum to the Contractor in respect of the Product or Service that was rejected.
Changes
1. Changes to Products or Services
  1. A party may, at any time by notice in writing to the other party suggest or request a change to the scope or nature of the Products or Services, including a change, modification or enhancement to the Upgraded Applications, Services or Associated Documentation to be provided as part of the Services in accordance with the process set out in Attachment “Changes”.
  2. Without limiting any part of the Contract, a change accepted by the Customer in accordance with the process in Attachment “Changes” is subject to the testing requirements set out in clause “Changes”.
  3. Upon the Customer accepting a Change Proposal:
    1. the Contract is amended to the extent necessary to incorporate the terms (including costs), specifications and timing in the Change Proposal, and if any Products or Services are modified as a result of the change, the modified Products and Services will be treated as the Products or Services under the Contract; and
    2. the Contractor must carry out, implement and complete the Change Proposal on the terms of the Change Proposal and the Contract.
2. Removal of Finance and/or Procurement Applications
  1. Notwithstanding the process referred to in this clause regarding changes to Products or Services, the parties agree that:
    1. the Contractor will not withhold its approval for the removal of the Finance and/or Procurement Applications if requested by the Customer; and
    2. in the event that the Finance and/or Procurement Applications are removed from scope, the pricing as set out in Attachment “Charges” will not be varied.
Warranties – Contractor
1. General
  1. The Contractor warrants that:
    1. any goods, equipment or materials and any other Products provided by it under the Contract will be fit for the purposes described in the Contract;
    2. if and to the extent ownership of a Product is to pass to the Customer, the Product will be free from any charge or encumbrance;
    3. it has the right to grant all licences granted by it under the Contract;
    4. no Virus will be introduced into the Customer’s Systems as a result of any wilful or negligent act or omission by the Contractor or any of its Personnel in the course of providing any Products or Services;
    5. the information provided as to the structure, viability, reliability, insurance cover, capacity, experience and expertise of the Contractor and its Personnel as described in the documents in Attachment “Additional Documents” is correct as at the date of this Contract and the Contractor shall advise the Customer if it subsequently becomes incorrect;
    6. all materials and Products supplied by the Contractor in connection with the development, installation and integration of the Applications and interface with the Customer’s System and any Modifications are free of any lien or encumbrance and their use by the Customer will not infringe the Intellectual Property Rights or any other rights of any third party and the remedy for breach of this warranty shall be the Customer’s rights the indemnity in clause “Intellectual Property and Moral Rights”;
    7. the Contractor is able to perform its obligations under the Contract in accordance with any standards required under the Contract;
    8. the Services will be performed with due care and skill, in a proper and professional manner consistent with best industry practices and with minimum interruption to the Customer’s business and operations;
    9. the Contractor will employ an adequate number of appropriately trained and experienced Personnel to provide the Services;
    10. the Contractor has evaluated the technical aspects of the Customer’s System and has the technical expertise and resources to maintain and manage those systems, as relevant to the Service being provided by the Contractor, in accordance with the Contract;
    11. the Contractor will perform the Services using stable, proven technology;
    12. the Associated Documentation provided to the Customer by the Contractor in accordance with the Contract will provide the Customer with adequate instructions to enable the Customer’s Personnel to use the Applications and Systems to the fullest extent;
    13. all relevant licences, approvals, consents, permissions, filings, registrations and permits necessary to perform any Services under the Contract have been obtained by the Contractor;
    14. all tangible Products and other goods and parts used in providing the Hosting Services shall be new unless otherwise agreed; and
    15. the Contractor will not enter into any arrangement that impedes or is likely to hinder its provision of the Services in a manner, and to a standard, that is not satisfactory to the Customer without obtaining the Customer’s prior written consent.
2. Third Party Warranties
  1. Where the Contractor supplies Products that have been procured from a third party, the Contractor assigns to the Customer, to the extent practicable and to the extent permitted by law, the benefits of the warranties given by the third party in respect of those Products. This assignment does not in any way relieve the Contractor of the obligation to comply with warranties offered directly by the Contractor under the Contract. The Customer agrees that the Contractor shall not be required under this clause to expend money to obtain an assignment (unless the Customer agrees to reimburse the Contractor for such payment). The Customer further agrees that the Contractor shall not be in breach of this clause for failure to obtain such assignment.
3. Implied Terms
  1. To the extent permitted by law, implied terms are excluded from the Contract.
4. Title and Risk of Loss
  1. Subject to clause “Disaster Recovery”, ownership of each item, unit or module of any Product shall pass to the Customer immediately upon Acceptance of that Product. Risk of loss or damage to any Product resides with the Contractor until Acceptance of that Product by the Customer.
5. Information provided by Contractor
  1. The Contractor represents and warrants on a continuing basis that all information, representations, warranties and undertakings made or given by it to the Customer before the Commencement Date in any documents which are specifically referred to in Attachment “Additional Documents” are true, complete and accurate in all respects. The Contractor acknowledges that the Customer has relied upon these representations, warranties and undertakings in entering into the Contract.
6. Survival of Clause “Warranties – Contractor”
  1. This clause “Warranties – Contractor” will survive the termination or expiry of the Contract.
Audit and Access Requirements
1. Scope of Audits
  1. Audits may be conducted under clause “Conduct of Audits” provided that the Customer shall not conduct more than one audit in any rolling 12 month period unless the previous audit disclosed a material issue in respect of the provision of the Services or in the invoicing of charges under this Contract.
  2. the Contractor’s compliance with all its obligations under the Contract;
  3. any other matters reasonably determined by the Customer to be relevant to the performance of the Contractor’s obligations under the Contract (but shall not include any right of access to the Contractor’s costs or profit margins.
2. Conduct of Audits.
  1. The Contractor must participate promptly and cooperatively in any audits conducted by the Customer or its nominee. In appointing a nominee to conduct an audit, the Customer agrees to use its reasonable endeavours not to appoint a person or entity that provides services similar and in competition to those provided by the Contractor. The Customer shall take into account any submissions made by the Contractor in respect of its selection of a nominee under this clause.
  2. Except in those circumstances in which notice is not practicable or appropriate, the Customer must give the Contractor reasonable notice of an audit and, where reasonably practicable, an indication of which documents and/or class of documents the auditor may require.
  3. Subject to any express provisions in the Contract to the contrary, each party must bear its own costs associated with any audits.
  4. Subject to this clause, the requirement for, and participation in, audits does not in any way reduce the Contractor’s responsibility to perform its obligations in accordance with the Contract.
  5. The Customer must use reasonable endeavours to ensure that audits do not unreasonably delay or disrupt to the Contractor’s performance of its obligations under the Contract.
  6. The Contractor must promptly take, at no additional cost to the Customer, corrective action to rectify any error, non-compliance or inaccuracy identified in any audit in the way the Contractor has under the Contract unless the corrective action requires implementation of additional hardware or software to which attachment “Changes” will apply.
  7. To the extent that the Customer uses a nominee to conduct the audit under this clause the Customer agrees to ensure that the nominee keeps the results of such audit confidential, subject only to any Government policy or legislation requiring disclosure of such information.
Personnel and Subcontracting
1. Provision of Personnel
  1. The parties will each utilise such Personnel as are necessary to enable them to fulfil their respective obligations under the Contract. Each party will ensure that the Personnel which it utilises pursuant to this clause have the requisite skills and experience.
2. Entry onto Customer’s Premises
  1. The Contractor will:
    1. provide or procure the provision of such information as can be lawfully provided, and which is reasonably requested by the Customer, concerning the Personnel it proposes to bring onto the Customer’s premises for the purposes of the Contract;
    2. provide suitable replacement Personnel should the Customer, on reasonable grounds, deny access to or request removal of any Personnel; and
    3. ensure its Personnel, when on the Customer’s premises or when accessing the Customer’s systems, equipment, facilities and information, comply as necessary with the reasonable requirements and directions of the Customer with regard to conduct, behaviour, safety and security (including submitting to security checks as required and complying with any obligation imposed on the Customer by law).
3. Key Personnel
  1. Where Personnel are specified in the Contract Details as being responsible for the performance of key roles or tasks under the Contract, the Contractor will provide those individuals (‘Key Personnel’ or ‘Key Persons’) to fulfil those tasks for the period and on the basis specified in the Contract Details.
  2. If, notwithstanding the obligation under this clause, a Key Person is unavailable for more than 5 consecutive Business Days, the Contractor will promptly advise the Customer and propose a suitable qualified substitute. Any substitute Personnel must be approved by the Customer in a timely manner. The Customer may not unreasonably withhold its approval of a substitute but it may give its approval subject to such conditions as it reasonably considers necessary to protect its interests under the Contract. Any additional costs of the Contractor in replacing such Personnel, including handover or training required for the new Personnel shall be at the Contractor’s expense.
  3. The Customer may, acting reasonably at any time during the term of the Contract, require the Contractor to replace any Key Person. If the Customer requires replacement of any Key Person, the Contractor must, at its own expense, use reasonable endeavours to provide a replacement promptly. The replacement must be substantially the same level of experience as the Key Person being replaced and must be approved by the Customer.
4. Subcontracting
  1. Subject to the approval of the Customer, which may be withheld at the Customer’s absolute discretion, the Contractor may subcontract the work to be performed under the Contract. Subcontractors specified in the Contract Details will be deemed approved for the purposes of the Contract. The Contractor is responsible for ensuring that any obligations which it subcontracts are performed by the subcontractor concerned and shall be liable for any acts or omissions of its subcontractors as if they were acts or omissions of the Contractor. The Contractor will ensure that each subcontractor is aware of the provisions of the Contract relevant to that part of the work which the subcontractor is to perform.
  2. The Contractor shall not subcontract the whole of the work under the Contract.
  3. The Customer may, at any time and in its absolute discretion, request the withdrawal and/or replacement of any subcontractor. The Contractor must ensure that the subcontractor immediately ceases work upon receipt of a notice in writing from the Customer which withdraws the consent (including deemed consent) given under this clause
  4. The Contractor must ensure that it has the right to terminate any subcontract in accordance with clause “Termination”.
  5. It is the Contractor’s responsibility to ensure that any variation made to the Contract is imposed on any subcontractor.
  6. If a subcontract is terminated, repudiated or rescinded, the Contractor shall promptly notify the Customer and ensure that it has the necessary resources in place to complete the Services under the Contract.
  7. The Contractor is responsible for any delay or costs incurred or caused by a subcontractor.
5. Non-solicitation
  1. A party must not entice, solicit, canvass, or attempt to entice, solicit, canvass, any employee, consultant or contractor of the other party to leave the employment of that other party to become an employee, consultant or contractor in a business wholly or partly owned or controlled by the party. This clause does not apply to employment of a person if such person responds to any advertisement placed by a party for any position in a business wholly or partly owned or controlled by that party.
Non-disclosure and Use of Information
1. Extent of Obligation
  1. Subject to paragraphs (iv) and (v) of this clause and except to the extent necessary to comply with any government policy relating to the public disclosure of confidential information, neither the Contractor nor the Customer will make public, disclose or use for purposes other than for the purposes of the Contract the confidential information of the other, unless the other gives its written approval. Confidential information includes:
    1. information marked as confidential, unless such information is of the nature described in clause (b); and
    2. information which by its nature is confidential.
  2. The Customer agrees to brief the Contractor on the types of information that the Customer considers confidential.
  3. A party is not obliged by this clause to keep information confidential if that information:
    1. is trivial or obvious;
    2. was already in the receiving party’s possession at the time of receipt from the other party;
    3. has become public knowledge (other than through a breach of an obligation of confidence imposed under the Contract);
    4. was published or otherwise becomes part of the public domain other than through a breach of the Contract by the disclosing party;
    5. was independently developed by the receiving party without reference to the confidential information of the furnishing party; or
    6. was disclosed as a result of a legal obligation or by order of a stock exchange or government agency, provided that the receiving party must, to the extent practicable, give the disclosing party prompt notice of the existence of such an obligation and must, at the disclosing party’s cost, make a reasonable effort to otherwise protect the confidentiality of such information.
  4. Nothing contained in the Contract will restrict a party from the use of any ideas, concepts, know how or techniques which it independently develops or acquires under the Contract, except to the extent such use infringes the other party’s Intellectual Property Rights or other rights.
  5. The Customer may, in compliance with government policy, publish (in any medium, including the internet) certain details of the Contract (including, but not limited to, the name of the Contractor, the value, and a general summary of the provisions of, the Contract).
2. Obligations of Personnel
  1. Each party will take all reasonable steps to ensure its Personnel engaged to perform work under the Contract do not disclose confidential information of the other party obtained during the course of performing such work.
  2. The Customer may at any time require the Contractor to arrange for its Personnel engaged in work under the Contract to execute a deed of confidentiality substantially in the form specified in Attachment “Deed of Confidentiality”. The Customer agrees that if it makes such request, then the Contractor must use its reasonable endeavours to ensure that the Contractor’s Personnel execute a deed of confidentiality. Notwithstanding anything in this clause, the Contractor agrees to indemnify the Customer and keep the Customer indemnified against any loss, cost, damage or expense incurred or suffered by the Customer as a result of the failure by any of the Contractor’s Personnel to comply with the obligations of confidentiality in this Contract.
3. Disclosure to Media and Others
  1. Neither party will disclose to the media any information regarding the Contract or work performed under the Contract without the written consent of the other party. Unless expressly prohibited in the Contract Details, however, the Contractor may include the Customer’s name and a factual description of the work performed under the Contract:
    1. in a list of references;
    2. in proposals to third parties; and
    3. in its annual report.
4. Confidentiality concerning electronic information
  1. The Contractor must not reverse engineer, decompile or disassemble any software or other electronic products supplied to it by the Customer.
5. Notification of unauthorised use
  1. If the Contractor becomes aware of any unauthorised access to, use or disclosure of Confidential Information, or any suspected or possible breach of the obligations under this clause, it must immediately notify the Customer.
6. Return of Confidential Information
  1. The Contractor will, on demand or on completion or termination of the Contract, whichever occurs first, return to the Customer any documents in its possession, power or control containing any confidential information of the Customer or, if the Customer so directs, destroy that information. If the Contractor advises the Customer that confidential information recorded in the Contractor’s back-up or archive systems cannot be returned or destroyed, the Customer agrees that the Contractor may retain such confidential information provided that clause “Extent of Obligation” shall continue to apply to that confidential information.
7. Survival of Clause “Non-disclosure and Use of Information”
  1. This clause “Non-disclosure and Use of Information” will survive the termination or expiry of the Contract.
Intellectual Property and Moral Rights
1. Developed Materials
  1. Subject to, clause “Developed Materials”, all Intellectual Property Rights in the Developed Materials, upon their creation, owned by the Contractor.
  2. Upon creating any Developed Materials, the Contractor must give notice in a form reasonably required by the Customer to the Customer that identifies the Developed Materials created, as the case may be.
2. Licensing of Developed Materials
  1. To the extent the Contractor owns Intellectual Property Rights in the Developed Materials:-
    1. the Developed Materials will be licensed to the Customer in accordance with clause “Licence Rights in Modifications owned by the Contractor”; and
  2. the Contractor will license the Customer to use all other such Modifications to the extent necessary for the Customer to derive full benefit from the Products and Services.
3. Licence Rights in Modifications owned by the Contractor
  1. Where Intellectual Property Rights in Developed Materials are, pursuant to clause “Developed Materials”, owned by the Contractor, the Contractor hereby grants to the Customer a licence in respect of such Developed Materials for the duration of the Contract.
4. Licensing of Customer’s Materials
  1. To the extent that the provision of Services by the Contractor necessitates access by the Contractor to the Customer’s materials (including but not limited to the Customer Data and the Customer’s System), the Customer grants the Contractor a nonexclusive, non-transferable licence for the term of the Contract to use such materials for purposes solely related to the Services, subject to any additional stipulations in the Contract Details.
  2. The Contractor acknowledges and agrees that the ownership of Customer Data and any Intellectual Property Rights in the Customer Data shall remain with the Customer and that the Contractor is only permitted to use the Customer Data for the purposes of providing the Products or Services and fulfilling its obligations under the Contract.
5. Moral Rights
  1. The Contractor undertakes to obtain, at the earliest opportunity, from any person (including the Contractor’s Personnel) whose Moral Rights may be affected, written consent to the doing of such acts (with respect to the material to which the Moral Rights relate) as required for the provision of, and for the Customer to derive full benefit from, any Services, Products and the System.
  2. Without limiting the generality of this clause “Moral Rights”, the Contractor warrants to and agrees that the Customer and its licensees may:
    1. exercise any and all rights in the Services and Products without identifying any person as the individual responsible for creating any particular material comprised in it; and
    2. modify, alter, adapt, distort or otherwise change any Products as permitted under the Contract.
  3. Subject to clause “Moral Rights”(i) and as at the date of delivery of the relevant Product or Service, the Contractor warrants that the Contractor’s provision and the Customer’s use of any Service or Product or the System does not infringe the Moral Rights of any third party.
6. Intellectual Property Rights in existing items
  1. Except where expressly stated to the contrary, the Contract does not affect the ownership of Intellectual Property Rights in Products, material or items that existed prior to the Commencement Date (including but not limited to Intellectual Property Rights in Existing Tools and materials used to produce the Applications or other items).
7. Survival of Clause “Intellectual Property and Moral Rights”
  1. This clause “Intellectual Property and Moral Rights” will survive the termination or expiry of the Contract.
Indemnity
1. Third Party Indemnity by Contractor
  1. The Contractor will continually indemnify the Customer (including its Personnel) against any claim or proceeding that is made, threatened or commenced by a third party, and against any liability, loss, damage or expense (including legal costs on a full indemnity basis), the Customer incurs or suffers as a direct or indirect result of a claim or proceeding made, threatened or commenced by a third party arising out of or in connection with any of the following:
    1. any wilful misconduct, negligent or unlawful act or omission by the Contractor or its Personnel; or
    2. any personal injury, sickness, death or tangible property loss or damage caused or contributed to, to the extent caused or contributed to by the Contractor; or
    3. a claim that the Contractor or its Personnel is an employee or agent of the Customer; or
    4. any claim made or threatened against the Customer in which it is alleged that a Service and/or Product (including the Customer’s use of a Service or Product) infringes the Intellectual Property Rights, Moral Rights or other rights.
2. Indemnity
  1. The Contractor will continually indemnify the Customer (including its Personnel) against any claim or proceeding that is made, threatened or commences and against any liability, loss, damage or expense (including legal costs on a full indemnity basis), the Customer incurs or suffers as a direct or indirect result of any of the following:
    1. any wilful misconduct, negligent or unlawful act or omission by the Contractor or its Personnel; or
    2. any personal injury, sickness, death or tangible property loss or damage caused or contributed to, to the extent caused or contributed to by the Contractor; or
    3. a claim that the Contractor or its Personnel is an employee or agent of the Customer.
3. Modification by Customer
  1. The Customer agrees that the indemnity in clause “Third Party Indemnity by Contractor” shall not apply to the extent that the claim or allegation of infringement arose from:
    1. a modification of any Product by the Customer which is not authorised by the Contractor; or
    2. the combination of a Product with another product or system not contemplated by this Contract.
4. Customer’s Obligations to Contractor
  1. Subject to the Contractor agreeing to comply at all times with government policy relevant to the conduct of the litigation, the Customer will use reasonable endeavours to withdraw from the litigation and permit the Contractor, at the Contractor’s expense, to handle all negotiations for settlement and, as permitted by law, to control and direct any litigation that may follow. In the event that the Contractor is permitted to handle negotiations or conduct litigation on behalf of the Customer at the Customer’s expense, the Customer will provide all reasonable assistance to the Contractor in the handling of any negotiations and litigation.
  2. The Customer agrees to notify the Contractor promptly of any claim where the Customer intends to rely on an indemnity in clause “Third Party Indemnity by Contractor”.
5. Continued Use or Replacement of Infringing Material
  1. If a claim of infringement of Intellectual Property Rights is made or threatened by a third party, the Customer will, without prejudice to any other rights that the Customer may have, allow the Contractor, at the Customer’s expense, to either:
    1. obtain for the Customer the right to continued use of the Service and/or Product; or
    2. replace or modify the Service and/or Product so that the alleged infringement ceases so long as the Service and/or Product (as the case may be) continues to provide the Customer with equivalent functionality and performance as required in the Specifications including, in the case of the Upgraded Applications, the Design Solution; or
    3. if the outcomes under clause “Modification by Customer” are not achieved by the Contractor within a reasonable manner and timeframe, remove the infringing item and the Customer shall adjust the Charges in a manner proportionate to the loss suffered by the Customer as a result of such removal.
6. Survival of clause
  1. This clause “Indemnity” will survive the termination and expiry of the Contract.
Problem Resolution
1. Objective
  1. The parties agree to use reasonable commercial efforts to resolve by negotiation any problem that arises between them under or in connection with the Contract. Neither party will resort to legal proceedings, until the following process has been exhausted, except if it is necessary to seek an urgent interim determination.
2. Notification and escalation process
  1. If a problem arises (including a breach or an alleged breach) under the Contract which is not resolved at between the parties’ project teams or which is sufficiently serious that it cannot be resolved between the project teams, the following escalation process will apply:
    1. in the case of a problem arising in relation to the Maintenance Services:
      1. the Customer’s Manager, Corporate Services or the Contractor’s Project Director may escalate the problem to the Executive Director Human Services Division and the Contractor Representative who must meet within 20 Business Days of the escalation and endeavour in good faith to agree upon a resolution. If after 10 Business Days the Executive Director Human Services Division and Contractor Representative fail to resolve the problem,
      2. the problem must be escalated to the Deputy Secretary – Infrastructure and Finance Services Group (or equivalent) and the Contractor’s Australia CEO (or equivalent) who must meet within 10 Business Days of the escalation and endeavour in good faith to agree upon a resolution.
    2. in the case of a problem arising in relation to the Hosting Services:
      1. the Customer’s Manager, Corporate Services or the Contractor’s Project Director may escalate the problem to the Executive Director Human Services Division and the Contractor Representative who must meet within 20 Business Days of the escalation and endeavour in good faith to agree upon a resolution. If after 10 Business Days the Executive Director Human Services Division and Contractor Representative fail to resolve the problem,
      2. the problem must be escalated to the Deputy Secretary – Infrastructure and Finance Services Group (or equivalent) and the Contractor’s Australia CEO (or equivalent) who must meet within 10 Business Days of the escalation and endeavour in good faith to agree upon a resolution.
    3. in the case of a problem arising in relation to Consultancy Services,
      1. the Customer’s Project Manager or the Contractor’s Project Director may escalate the problem to the Manager, Corporate Services and the Contractor Representative who must meet within 10 Business Days of the escalation and endeavour in good faith to agree upon a resolution. If after 7 Business Days the Manager, Corporate Services and Contract Representative fail to resolve the problem,
      2. the problem must be escalated to the Project Executive Sponsor and the Contractor’s Australian CEO (or equivalent) who must meet within 10 Business Days of the escalation and endeavour in good faith to agree upon a resolution.
    4. All references to party representatives in this clause “Problem Resolution” are references to the persons specified in Attachment “Governance Framework”
3. Mediation
  1. Should the Deputy Secretary – Infrastructure and Finance Services Group (or equivalent) (in the case of a problem in relation to the Maintenance Services or the Hosting Services) or the Project Executive Sponsor (in the case of a problem in relation to the Consultancy or Enhancement Services) and the Contractor’s Australia CEO (or equivalent) fail to reach a solution in accordance with clause “Notification and escalation process” within 10 Business Days (or such other time frame agreed between the parties), the Customer may elect to submit the problem to mediation. The mediator will be selected in the manner specified in the Contract Details.
4. Expert Determination
  1. If mediation pursuant to clause “Mediation” fails, or the Customer does not elect to submit a problem to mediation within 10 (ten) working days (or such other time frame agreed between the parties), the Customer may elect to submit the problem to expert determination. The expert will be selected by agreement of the parties or, if the parties cannot agree, by the industry body nominated by the Customer which industry body shall be independent and shall be the most relevant to the issue in dispute. Where the Customer elects to proceed by expert determination, the determination will be conducted pursuant to any relevant legislation and any procedures agreed by the parties, or, in the absence of agreement, as determined by the expert. In determining the dispute:
    1. the expert shall act as an expert and not an arbitrator;
    2. the expert’s determination shall be binding on the parties in the absence of any manifest error in fact;
    3. the parties must provide all relevant evidence and documents reasonably requested by the expert within 14 days of receiving the request;
    4. each party shall bear its own costs in relation to the presentation of documents, evidence and other assistance given to the expert; and
    5. the costs of the expert shall be shared equally by the parties.
  2. To the extent that the expert is requested to determine a matter which will impact on any subcontractor, the Contractor shall use its reasonable endeavours to obtain the subcontractor’s agreement to be bound by the expert’s determination and provide all relevant evidence which is not already in the Contractor’s possession.
5. Proceedings
  1. If mediation and/or expert determination fails, or if the Customer states that it does not wish to proceed with either mediation or expert determination, then either party may commence legal proceedings against the other.
6. Continued Performance
  1. Unless prevented by the nature of the dispute, the parties will continue to perform their respective obligations under the Contract while attempts are made to resolve the dispute. In circumstances where the dispute relates to payment and the Contractor is required to continue to perform its obligations under the Contract pursuant to this clause, the Customer will continue to pay the Contractor any undisputed amounts.
7. Termination
  1. Notwithstanding anything else in this clause “Problem Resolution”, nothing shall prevent the Customer exercising its rights of termination under clause “Termination” or step in under clause “Step In”.
Liability
1. Liability
  1. The liability of either party for breach of the Contract or for any other common law or statutory cause of action arising out of the operation of the Contract will be determined under the relevant law in Australia that is recognised, and would be applied, by the High Court of Australia.
  2. Neither party shall be liable for any indirect, special or punitive damages or any loss of profits or revenue arising out of the provision of the Maintenance Services or the Hosting Services. This clause shall not apply in respect of a party’s liability where that liability is unlimited under clause “Limitation”.
2. Limitation
  1. If so specified in the Contract Details, liability arising under this clause “Liability” will be limited. Unless expressly stated otherwise in the Contract Details, the limit on liability specified in the Contract Details will apply for the benefit of both parties in the aggregate for all claims or occurrences under this Contract.
  2. This limitation does not apply to the Contractor’s liability:
    1. for personal injury, including sickness and death;
    2. for loss of, or damage to, tangible property;
    3. under the indemnity clause or
    4. for infringement of Intellectual Property Rights or Moral Rights, for which the Contractor’s liability will be unlimited.
  3. The limitation does not apply to the Customer’s liability for:
    1. for personal injury, including sickness and death;
    2. for loss of, or damage to, tangible property; or
    3. for infringement of Intellectual Property Rights or Moral Rights, for which the Customer’s liability will be unlimited.
3. Contributory Negligence
  1. The liability of a party for loss or damage sustained by the other party will be reduced proportionately to the extent that such loss or damage has been caused by the other party’s failure to comply with its obligations and responsibilities under the Contract and/or to the extent that the negligence of the other party has contributed to such loss or damage, regardless of whether a claim is made by the other party for breach of contract or for negligence.
4. Consequences of Provision of Faulty Data by Customer
  1. The parties acknowledge that information, Customer Data and materials supplied by the Customer to the Contractor under the Contract is not for the purpose of either directing or guiding the Contractor’s provision of the Services under the Contract. The Customer does not warrant the suitability of such information, Customer Data or materials for any particular use or application nor does the Customer warrant the accuracy of such items. Notwithstanding anything else in this clause, if the Contractor relies on information or materials provided by the Customer which are inaccurate, the Contractor shall not be liable for any breach of this Contract to the extent that such breach was caused by reliance on that inaccurate information, Customer Data or material.
5. Survival of Clause
  1. This clause “Liability” will survive the termination or expiry of the Contract.
Step In
1. Step In
  1. Notwithstanding clause “Termination” or any other provision of the Contract, if:
    1. the Contractor has ceased to provide the Services or the Products under the Contract or the Customer is entitled to serve a notice under clause Termination (a) (i); or
    2. an event occurs in relation to which the Customer forms the opinion that, unless the Customer exercises some or all of its rights under this clause “Step In”, there is or is likely to be a material risk to the safety or welfare of the users of the Services,
  2. subject to paragraph (a) (i) the Customer may elect and, if it so elects, the Contractor will assist the Customer wherever and however possible to ensure that the Customer is able to:
    1. take or assume total or partial possession, management and control of the provision of the Services by the appointment of a person as Step In Manager; and
    2. take such other steps that in the opinion of the Customer, are necessary or desirable to continue or safeguard the provision of the Services as required by the Contract or to minimise the risk to the safety or welfare of the users of the Services.
  3. The Contractor acknowledges that the appointment of a Step In Manager under clause Step In (a) (i) is made by the Customer in order to mitigate its losses and such appointment:
    1. will not prevent the Customer from pursuing any other remedy available to it pursuant to the Contract or at law; and
    2. does not release the Contractor from its liability to provide the Services in accordance with the Contract; and
    3. subject to paragraph (a) and any other provision under this Contract, does not relieve the Customer from liability to pay for Services received during the period of appointment of the Step In Manager.
2. Entitlement to terminate
  1. Subject to clause “Entitlement to terminate” (ii), the Customer will not be entitled to give notice of termination for breach under clause “Step In” (i) or clause “Step In” (ii) and the Contractor will not be regarded as being in breach of the Contract during the appointment of the Step In Manager.
  2. The Customer will pay the costs of the Step In Manager and the Contractor will pay the costs incurred in order to mitigate its losses occasioned by the Contractor’s breach of the Contract.
3. Notice requirements
  1. The appointment of a Step In Manager due to the occurrence of an event of the kind referred to in clause “Step In” (i) will be subject to the Customer providing the Contractor 5 days’ notice of the proposed appointment and reasons in writing for the proposed appointment.
  2. The appointment of a Step In Manager due to the occurrence of an event of the kind referred to in clause “Step In” (ii) may be made immediately by giving notice to the Contractor.
4. Cooperation
  1. If a Step In Manager is appointed pursuant to clause Step In:
    1. the Contractor will provide all reasonable co-operation and assistance as may be necessary to assist in the rectification of the relevant breach, including, without limitation, making available to the Customer and the Step In Manager, to the extent practicable, all of its Personnel; and
    2. the Customer will not be liable for any omissions, acts or defaults of the Step In Manager.
5. Duration of appointment
  1. The appointment of the Step In Manager will, subject to clause (b) cease:
    1. where the appointment was due to an occurrence of an event of the kind referred to in clause “Step In” (i), upon rectification of the breach or upon the Customer reasonably forming the opinion that the breach is incapable of rectification whereupon the Customer may terminate the Contract for breach by the Contractor in accordance with the provisions herein;
    2. where the appointment was due to an occurrence of an event of the kind referred to in clause “Step In” (ii), upon the safety or welfare of the general public or users of the Services no longer being at risk, as determined by the Customer in its absolute discretion.
  2. Notwithstanding clause “Duration of appointment” (a), the Customer may, at its own expense, unilaterally require the continuation of the services of the Step In Manager following notice of termination.
6. Confidential Information
  1. 1. Nothing in this clause “Step In” will require the Contractor to provide any Confidential Information to the Step In Manager apart from Confidential Information which is necessary to enable the Step In Manager to discharge his or her role pursuant to this clause “Step In”.
Termination
1. Default
  1. The Customer may terminate the Contract immediately on written notice to the Contractor, while preserving to itself any rights which may have accrued to it, where the Contractor:
    1. commits a breach of the Contract which is not capable of being remedied;
    2. fails to remedy a breach capable of being remedied within a period stated by notice in writing (which period must be reasonable in the circumstances but shall not exceed 30 days unless otherwise determined by the Customer)
    3. becomes bankrupt or insolvent;
    4. becomes subject to one of the forms of external administration provided for in Chapter 5 of the Corporations Act 2001 (Cth);
    5. is wound up by resolution or an order of a court;
    6. ceases to carry on business;
    7. has failed to:
      1. in relation to the Maintenance Services, meet the Service Levels in respect of Severity 1 or Severity 2 Incidents (as defined in Attachment “Service Levels”) on four or more occasions within any six month period; or
      2. in relation to the Hosting Services, meet the Service Levels in respect of Severity 1 or Severity 2 Incidents (as defined in Attachment “Service Levels”) on four or more occasions within any six month period; or
    8. has otherwise regularly or persistently failed to meet any, some or all requirements of the Contract (including the Service Levels) or commits multiple recurring breaches of the Contract (including the Service Levels), whether or not such breaches are remedied.
2. Convenience
  1. Unless stated to the contrary in the Contract Details, the Customer may terminate the Contract in whole or in part, without cause:
    1. if terminating the Upgrade Services, by giving the Contractor 60 days notice; and/or
    2. if terminating the Maintenance Services by giving the Contractor 60 days notice ; and/or
    3. if terminating the Hosting Services by giving the Contractor 60 days notice ; and/or
  2. The Contractor will immediately comply with any directions given in the notice and do all that is possible to mitigate its losses arising from the termination of the Contract. The Customer shall pay for all services provided up until the date of termination. The time periods in this clause include the Services to be provided under clause “Transition Out”as applicable.
  3. If specified in the Contract Details, the Customer will reimburse the Contractor for liabilities and expenses (not including damages for loss of profit) which are substantiated and are properly incurred by the Contractor to the extent that those liabilities or expenses cannot be further mitigated as a result of the Customer’s termination under this clause “Convenience”. No further compensation will be payable in the event of termination pursuant to this clause “Convenience”.
3. Default in payment by Customer
  1. The Contractor may terminate the Contract on tw0 months’ written notice to the Customer where:
    1. the Customer has failed to pay an undisputed account when it is due; and
    2. the Contractor issues a written notice for payment of the undisputed amount; and
    3. the Customer does not pay the account within the 60 day period.
  2. The Contractor may not terminate the Contract in any other circumstances.
4. Consequences of termination
  1. Upon termination of the Contract, clause “Transition Out” will apply in relation to the Maintenance Services and Hosting Services.
Communication
1. Electronic Commerce
  1. To the extent specified in the Contract Details, the parties will cooperate in performing their respective obligations under the Contract in an electronic environment. The foregoing does not, however, relieve either party of its specified obligations as set out in the Contract.
2. Notices
  1. A notice or other communication is properly given or served by a party if that party transmits it by electronic mail; or to the address of the relevant officer specified in the Contract Details, marked to that person’s attention.
3. Change of Electronic Mail Address
  1. Each party will notify the other of any change in the address or identity of the relevant person to whom notices are to be addressed.
  2. If a party gives the other party three Business Days’ notice of a change of its electronic mail, any notice or communication is only given by that other party if it is delivered to the latest electronic mail.
4. Deemed Receipt
  1. Unless specified to the contrary in the Contract Details, a notice is deemed to be received if sent by electronic mail, only in the event that the other party acknowledges receipt by any means; or
  2. If a notice or communication is given, on a day that is not a Business Day or after 5pm on a Business Day, in the place of the party to whom it is sent, it is to be treated as having been given at the beginning of the next Business Day.
Miscellaneous
1. Entire Agreement
  1. The Contract constitutes the entire agreement of the parties about its subject matter, and no written or oral agreement, arrangement or understanding made or entered into prior to the execution of the Contract may in any way be read or incorporated into the Contract, except as expressly stated to the contrary.
2. Assignment and Novation
  1. Subject to any express provision otherwise in the Contract, neither party will assign the whole or part of the Contract without the prior written consent of the other party.
  2. Neither party will be obliged to consent to any proposed novation of the Contract unless the novation is as a result of a machinery of Government change.
3. Waiver
  1. The fact that a party fails to do, or delays in doing, something that party is entitled to have done under the Contract, does not amount to a waiver of any obligation, or breach of an obligation by the party.
  2. A waiver by a party is only effective if it is in writing.
  3. A written waiver by a party is only effective in relation to the particular obligation or breach in respect of which it is given. It is not to be taken as an implied waiver of any other obligation or breach, or as an implied waiver of that obligation or breach in relation to any other occasion.
4. Applicable Law
  1. The Contract will be governed by, and construed in accordance with, the laws of the South Australia, Australia. The parties submit to the non-exclusive jurisdiction of its courts and the courts of appeal from them. The parties will not object to the exercise of jurisdiction by those courts, either for forum non convenience or any other basis.
5. Conflict of Interest
  1. The Contractor warrants that, to the best of its knowledge, at the date of execution of the Contract no conflict of interest exists or is likely to arise in the performance of itsobligations under the Contract.
  2. The Contractor must immediately notify the Customer of any matter which may give rise to an actual or potential conflict of interest at any time. If a conflict of interest, or any matter that may give rise to an actual or potential conflict of interest arises, the Contractor must:
    1. notify the Customer immediately of the conflict or matter and its plan for resolving or avoiding the conflict; and
    2. take such action as may be necessary to resolve or avoid the conflict of interest, including any action that the Customer may specify to ensure that the conflict is resolved or avoided in a manner satisfactory to the Customer.
6. Variation
  1. The Contract may only be varied by a written agreement signed by both parties. If proposed changes will have the effect of varying the Specifications, or the Applications, the Contract Details or any other technical requirements of the Customer, the parties must comply with clause “Changes”.
7. Time
  1. The Contractor must provide the Services and Products in accordance with the timeframes set out in the Transition Plan, System Transition Plan and/or Project Plan (as applicable) or otherwise as agreed by the parties in writing.
  2. The parties acknowledge that the timeframes contained in the Transition Plan, System Transition Plan and/or Project Plan may be revised by the Customer at any stage as a result of any delays caused by the Contractor or any other cause. If the delay is not caused by the Contractor, the Customer agrees not to shorten any period of time under this clause. The Customer will provide in writing to the Contractor any amendments for the timeframes in the Transition Plan, System Transition Plan and/or Project Plan as soon as practicable after the revision.
  3. If the Contractor is aware that any delay will be caused in the delivery of a Product or Service, it must notify the Customer in writing as soon as it becomes aware that an obligation will not be met, such notice to contain:
    1. a statement outlining the cause for the (possible) delay; and
    2. a statement of steps the Contractor intends to implement to overcome or minimise the delay.
  4. The Contractor may, by notice in writing to the Customer, request an extension of time. The Customer, in its absolute discretion, may grant an extension of time and vary the Contract in accordance with clause (ii).
8. Parties’ Responsibilities
  1. Neither party will be liable to the other for failing to comply with any obligations under the Contract to the extent that such failure results from the other party not performing its obligations as stated in the Contract.
9. Severability
  1. Each provision of the Contract shall be read as separate and severable so that if any provision is void or unenforceable for any reason, that provision will be severed and the remainder will be construed as if the severed provision had never existed.
10. Export
  1. The Customer acknowledges that the Products may contain components that are of US origin and are subject to US export laws. The Contractor warrants that any Product supplied under this Contract is for use in a country to which export is permitted under the US export administration regulations and applicable export laws. The Customer agrees not to transfer a Product and any direct product derived from any component of a Product outside of Australia without the Contractor’s prior written consent, which shall not be unreasonably delayed or denied.