(a) These Terms and Conditions, together with the Services Proposal form the Agreement between BCS and Customer. The Agreement is the entire agreement between the Parties as to its subject matter. It supersedes all prior agreements, representations, conduct and understandings.
(b) In the event of any inconsistency between the Services Proposal and these Terms and Conditions, the provisions of the Terms and Conditions will prevail to the extent of the inconsistency.
2. Term of the Agreement
The Agreement commences on the Commencement Date and ends on the End Date, unless terminated earlier in accordance with the Agreement.
3. Non-exclusive Appointment
Customer will receive the Services from BCS, and BCS will provide the Services to Customer, on a non-exclusive basis.
4. General BCS Obligations
(a) BCS agrees that during the Term it and its Personnel will provide the Services:
(i) expeditiously to the reasonable satisfaction of Customer in accordance with the provisions of the Agreement and:
A. all applicable laws and regulations; and
B. any reasonable directions in relation to the Services given by Customer from time to time;
(ii) in a professional manner with due skill and care and in accordance with industry standards;
(iii) using appropriately skilled and qualified Personnel; and
(iv) acting honestly, ethically, professionally and courteously in all dealings with Customer.
(b) BCS acknowledges that in providing the Services it and its Personnel will have access to highly sensitive information, including access to Customers Data which is considered Confidential Information.
(c) BCS agrees that at all times during the Term it will take all reasonable steps and adopt industry-standard methods to ensure the protection of Customer Data when providing the Services, including the storage of Access Information in an encrypted secure password portal.
(d) BCS and/or its Personnel agree that they will only access Customer Data to the extent that is reasonably necessary for BCS and/or its Personnel to provide the Services under the Agreement;
5. BCS Warranties
BCS warrants that:
(a) it has the right to enter into the Agreement and perform the Services;
(b) the execution, delivery and performance of the Agreement by it does not contravene any contractual, legal or other obligation that applies to it;
(c) it holds all licenses, permits, consents and authorisations required under applicable law in relation to the provision of the Services;
(d) its Personnel are fit and proper persons to provide the Services, have completed satisfactory national police check prior to commencement of employment or engagement by BCS and otherwise, following reasonable enquiry by BCS, do not have any criminal convictions, charges or pending criminal proceedings concerning cybersecurity, cybercrime or otherwise concerning subject matter in any way relating to the Services;
(e) it will take care in accessing or utilising the Computer System and will ensure its Personnel do not interfere with, disrupt or cause any damage to the Computer System, including by taking steps to prevent Harmful Code from being introduced to the Computer System; and
(f) Other than where expressly provided in the Services Proposal or these Terms and Conditions, to the maximum extent permitted by law, all other warranties are excluded.
6. Obligations of Customer
(a) Customer shall use best endeavours to perform all acts (including omitting to perform any acts) required to enable BCS to provide the Services.
(b) Customer shall promptly communicate any problems with the provision of the Services.
(c) From time to time, BCS may incur direct expenses (including, travel, accommodation and consumables) to provide the Services. BCS shall seek the written approval of Customer before such expenses are incurred. If Customer provides written approval for such expenses, Customer shall reimburse BCS for any such approved expenses plus a 5% administration fee.
(d) Customer must immediately notify BCS of any change to the Computer System (such as, without limitation, changes to configuration, hardware, software, network connections). BCS shall (acting reasonably) notify Customer of any necessary amendments (including pricing variations) required to be made to the Agreement as a result of such changes. If those amendments are not agreed by Customer, notwithstanding any other provision of the Agreement, the issue may be referred by either party to dispute resolution under clause 14.
(a) The Parties agree that in consideration for the Services provided by BCS, Customer will pay the Services Fees to BCS in accordance with the Services Proposal. Except as otherwise specified, the Services Fees are exclusive of GST.
(b) Invoicing will be provided monthly and payment is due within 14 days of receiving an invoice.
8. Nature of Relationship
(a) BCS is engaged by Customer as an independent contractor and nothing in the Agreement constitutes BCS as agent, employee, director, venturer, trustee or partner of Customer or in a joint venture with Customer or vice versa.
(b) Neither Party shall:
(i) bind or commit or purport to bind or commit the other Party in any way; or
(ii) pledge the credit of the other Party for any purpose.
Each Party and its Personnel shall comply with all privacy obligations under any law or regulation in providing the Services under the Agreement.
(a) use, access, retain and disclose Personal Information obtained in connection with this Agreement only for the purpose for which the Personal Information was acquired;
(b) not do any act or engage in any practice that would breach the Privacy Act or which if done or engaged in by Customer would be a breach of the Privacy Act;
(c) comply with, carry out and discharge the obligations contained in the Privacy Act as if it were BCS carrying out and discharging those obligations;
(d) notify Customer immediately upon becoming aware of a breach or possible breach of any obligations in this clause, whether by BCS or its Personnel;
(e) comply with all reasonable directions of Customer in relation to the care and protection of Personal Information held in connection with the Agreement and take all reasonable measures to ensure that such information is protected against loss, unauthorised access or use, modification or disclosure and other misuse;
(f) ensure that all of BCS’ Personnel who are required to deal with the Personal Information for the purposes of this Agreement are made aware of the obligations of BCS under this clause; and
(g) ensure that any agreement with any subcontractor who may be fulfilling a requirement in relation to the Agreement which includes the handling of Personal Information, contains the same or equivalent obligations to this clause, which are enforceable against the subcontractor.
10. BCS Personnel
(a) BCS may employ staff or (subject to clause11) subcontractors to assist it to perform its obligations under the Agreement.
(b) Customer may reasonably request that BCS withdraw any of its Personnel from providing any part of the Services. If Customer makes a request under this clause, BCS must:
(i) promptly arrange for that person to cease being involved in providing the Services; and
(ii) ensure that the person does not return to Customer Premises except with Customer prior written consent, which may be withheld in its absolute discretion.
(a) BCS must ensure that any subcontractor approved under the Agreement complies with all relevant provisions of the Agreement, including clauses 9 (Privacy), 12 (Use of the Customer Premises and Systems), 15 (Confidentiality) and 17 (Insurance & Indemnity).
(b) Notwithstanding any subcontracting of the Services, BCS remains liable for the performance of its duties and obligations under the Agreement.
12. Use of Customer Premises and Systems
(a) To the extent that BCS and any of its Personnel are present at Customer premises, or utilise (whether onsite or remotely) any of Customer property, facilities, computer systems or software (including the Computer System), BCS must comply (and must ensure that its Personnel comply) with Customer reasonable lawful directions and policies of which Customer has made BCS aware of.
(b) BCS must, and must ensure that its Personnel, use and access Customer premises and the Computer System:
(i) for the sole purpose of providing the Services;
(ii) in an efficient and responsible manner; and
(iii) in accordance with all laws and the Privacy Act.
(a) Termination with Notice
Customer may, at any time, terminate the Agreement by giving BCS not less than one month’s written notice.
(b) Termination for breach
A party may terminate the Agreement on written notice with immediate effect if the other party:
A. breaches a material obligation which is not capable of remedy, or has failed to remedy that breach within 30 days of written notice by the other party;
B. suffers an Insolvency Event;
C. in the case of Customer, has not paid an undisputed invoice within 60 days of that invoice becoming due; or
D. does not hold the necessary licenses or authorisations required by law to provide or use the services or products.
(ii) Where the Agreement is terminated due to Customer material breach, Customer must pay all amounts due for the period up to and including the effective date of termination.
(iii) Unless otherwise agreed in writing, termination of the Agreement has no effect on any other agreements.
(iv) Termination of the Agreement is without prejudice to any right of action or remedy of a party which has accrued before termination or which may accrue at or after termination.
(c) Consequences of Termination
Upon termination or expiry of the Agreement for any reason, or if otherwise requested by Customer for any reason, BCS must immediately:
(i) cease using any Access Information used to provide the Services;
(ii) ensure that no changes are made to any Access Information without explicit written permission from Customer;
(iii) provide to Customer all up to date documentation of Access Information used to provide the Services;
(iv) comply with the relevant obligations in clause 15 (Confidentiality); and
(v) promptly return to Customer, or if directed by Customer, delete or destroy in a manner that cannot be retrieved, all Confidential Information of Customer and all documents and other tangible materials containing any Confidential Information of Customer obtained by BCS as a result of, or pursuant to, the Agreement.
14. Dispute Resolution
(a) If a dispute arises between the Parties concerning this Agreement, the disputing Party must give written notice to the other Party specifying details of the dispute.
(b) If the dispute is not settled by agreement within 14 days of service of notice it must be referred to the Chief Executive Officer (or equivalent or delegate) of each Party for them to resolve by formal or informal mediation. If the dispute cannot be resolved within one month of being referred to the Chief Executive Officers, either Party may take further action. A Party may seek urgent interlocutory relief without following the process in this clause.
(a) Confidential Information
(i) Each Party and its Personnel acknowledge that they will during the Term come into possession or be in a position to acquire Confidential Information.
(ii) Each Party and its Personnel acknowledge that maintaining the confidentiality of that Confidential Information is important to them in order to maintain the value of that Confidential Information.
(iii) Each Party and its Personnel acknowledge that the Confidential Information is made available to them because it is fundamental and critical to the proper performance of their duties and is:
A. confidential in nature; and
B. provided for the limited purpose of the performance of the Services pursuant to the Agreement.
(b) Obligations whilst providing Services pursuant to the Agreement
Neither Party nor its Personnel shall use any Confidential Information of the other Party other than for the purposes of providing the Services pursuant to the Agreement and will not disclose any Confidential Information to any person other than where disclosure is required by law.
(c) Obligations after ceasing to provide Services
After BCS has ceased providing Services pursuant to the Agreement:
(i) neither Party nor its Personnel shall put any Confidential Information to any use which may cause Loss, directly or indirectly, to the other Party; and
(ii) neither Party nor its Personnel will disclose any Confidential Information to any person other than where disclosure is required by law.
(d) Copies of Confidential Information
Neither Party nor its Personnel shall copy or permit to be copied or make use of any Confidential Information other than for the purposes of the Agreement.
(e) Deed of confidentiality
If required by Customer, BCS and/or its Personnel may enter into a deed of confidentiality (in a form reasonably required by Customer) with respect to the Confidential Information which may be in the possession of, accessed or acquired by BCS and/or its Personnel in providing the Services under the Agreement.
16. Intellectual Property
(a) Ownership of Intellectual Property
(i) Each Party retains all rights to existing Intellectual Property (Background IP) used in the performance of the Services.
(ii) Customer agrees that BCS is the owner of BCS’ Works (except any of Customer Data and Customer Works).
(b) Use of Third Party Intellectual Property
BCS warrants that it:
(i) owns all Intellectual Property used in the performance of the Services; or
(ii) has a licence to use any third party Intellectual Property used in the performance of the Services.
17. Insurance & Indemnity
(a) Professional indemnity insurance
BCS agrees and represents that it has obtained and will take all reasonable steps to during the Term maintain, professional indemnity insurance with reputable insurers:
(i) for a total cover not less than $10 million for any one claim and not less than $10 million in the aggregate for all claims during any 12 month period;
(ii) covering, inter alia, claims by Customer against BCS or by any other person or corporation arising out of or incidental to any negligent act, error or omission of BCS in connection with the professional activities and duties of BCS as the party responsible for the performance of the Services under the Agreement; and
(iii) for the period from the Commencement Date until not less than 7 years after the expiry of the Agreement.
(b) Workers compensation insurance
BCS will, for the Term, maintain insurance against any liability which may arise:
(i) at common law; or
(ii) by virtue of any workers compensation or employers liability legislation,
covering all of the BCS Personnel.
(c) Public and products liability insurance
BCS agrees and represents that it has obtained and will maintain a policy of public and products liability insurance with reputable insurers throughout the Term:
(iii) for an amount not less than $20 million per occurrence, unlimited in the aggregate; and
(iv) noting the interests of Customer.
(d) Proof of insurance and notification
On request, BCS will provide Customer with a certificate of currency for all policies of insurance effected pursuant to clauses 17(a), 17(b) and 170; and
BCS will indemnify and keep indemnified Customer against all Claims and Loss which Customer suffers or incurs directly or indirectly for which Customer is liable arising from any of the following:
(v) a breach or alleged breach, failure to comply or delay in complying with clauses 5, 9, 10, 11, 12, 15 or 16; or
(vi) generally any other breach (whether actual or threatened) of the Agreement or in respect of any negligence by BCS,
except to the extent that the Claim or Loss is caused by Customer negligence.
18. Limitation of Liability
(a) Subject to the exclusions to the limitation on liability at sub-clause (b) and any law to the contrary, BCS’ liability to Customer (and any party claiming through BCS against Customer) for any Claims for Loss made in connection with the Agreement for contract, tort (including negligence), under statute, in equity or otherwise shall be as follows:
(i) If BCS is in breach of the Agreement, BCS’ liability is strictly limited to:
A. for goods, products or materials – the cost of replacement of the defective goods as soon as reasonably practicable, or the repair of the defective goods or the repayment (or allowance) of the invoice price of the defective goods at the option of BCS; or
B. for services – to the provision of the services again or payment of the cost of having the relevant services provided again at the option of BCS;
C. the proceeds of any applicable insurance policy in respect of any Loss arising.
(ii) BCS’ liability under clause 18(a) will be reduced in proportion to the extent that Customer or its Personnel contributed to the Claim or Loss.
(b) Any limit on the liability of BCS under clause 18(a) does not apply in relation to liability arising from or caused in any way by BCS performing the Services relating to:
(i) any liability covered by (or required to be covered by) a policy of insurance under this Agreement;
(ii) personal injury (including sickness and death) of any person;
(iii) loss of, or damage to, tangible property;
(iv) loss of, or damage to Customer Data as a result of any negligence by BCS or its Personnel;
(v) an infringement of Intellectual Property Rights;
(vi) a breach of any obligations of confidentiality or privacy (including contrary to the Privacy Act); or
(viii) any breach of any statute or negligent, unlawful or wilfully wrong act or omission of BCS or its Personnel, including any act or omission that constitutes repudiation of the Agreement.
19. Miscellaneous Provisions
Each Party shall bear its own costs and expenses in respect of the preparation, negotiation and execution of the Agreement.
Neither Party shall assign, transfer, encumber or declare trusts in respect of the Agreement without the consent of the other Party.
(c) No Waiver
A Party’s failure or delay to exercise a power or right is not a waiver of that right, and the exercise of a power or right does not preclude the future exercise of that or any other power or right.
Clauses 9, 14, 15, 16, 17, and 19 survive the termination or expiry of the Agreement.
If any of these terms and conditions are invalid or unenforceable, all other terms and conditions that are self-sustaining and capable of separate enforcement without regard to the invalid or unenforceable terms and conditions will be and will continue to be valid and enforceable.
The law of the Agreement is the State of South Australia, and the Parties submit to the non-exclusive jurisdiction of the Courts of South Australia and any proceedings brought in the Federal Court of Australia must be instituted in its Adelaide Registry.
The Agreement may be executed in counterparts (including by facsimile or PDF). All executed counterparts constitute one document.
20. Definitions and Interpretation
In this Agreement, the following terms have the following meanings:
Access Information means any usernames, passwords and access codes of Customer required to access Customer Data necessary to perform the Services.
Agreement means this agreement comprising the Terms and Conditions and the Services Proposal.
BCS means Blue Crystal Solutions Pty Ltd (ABN 18 110 487 075).
Business Day means a day other than a Saturday, Sunday or public holiday in Adelaide, South Australia.
Claims means claims, damages, liabilities, judgments, losses, costs and expenses of every kind and nature including legal fees.
Commencement Date means the date of the Agreement.
Computer System means Customer computer network, servers, workstations, equipment, software or operating system.
Confidential Information means, in respect of a Party, any and all information in or relating to that Party and/ or any related body corporate of that Party which is obtained by the other Party as a result of, or pursuant to, the Agreement, including (without limitation and as appropriate) Customer Data and Access Information, information regarding supplier information, customer information, information regarding current or future business interests, methodology or affairs of that Party and/ or any related body corporate of that Party or of any entity with which they may deal or be concerned including matters of a technical nature, administrative information, accounting procedures, financial information, terms of agreements with third parties and any such other information which may be notified by that Party and/ or any related body corporate of that Party to the other Party during the Term which the other Party acquired solely by virtue of provisions of the Agreement, is confidential by its nature or which the other Party knows or ought to know is confidential, and includes the content of the Agreement but does not include:
(i) information which is or becomes a matter of public record, otherwise than as a result of a breach of an obligation of confidentiality or any other deed or agreement to which that Party is a party; and
(ii) information which that Party authorises in writing for the time being as not being Confidential Information. A Party may at any time withdraw any authorisation given in terms of this paragraph, in which case the information to which it relates will henceforth be Confidential Information, but without affecting any communication made prior to the withdrawal of such authorisation.
Customer means the person or organisation identified as the customer in the Services Proposal
Customer Data means all data and information relating to Customer, and its operations, facilities, customers, Personnel, assets and programs in whatever form that information may exist and whether entered into, stored in, generated by or processed through software or equipment by or on behalf of Customer including (without limitation), Access Information, Personal Information, Customer contact listings, Customer contracts and agreements, Customer billing/rates and pricing agreements, supplier information, customer information, information regarding current or future business interests, methodology or affairs of Customer and/or any related body corporate of Customer or of any entity with which they may deal or be concerned including matters of a technical nature, administrative information, accounting procedures, financial information, terms of agreements with third parties and any such other information which may be notified by Customer and/or any related body corporate of Customer.
Customer Premises means premises notified to BCS by Customer.
End Date means the date by which the Services must be completed as specified in the Services Proposal. If no such date is specified, the End Date is the date upon which the Services are completed by BCS.
GST means the goods and services tax, as governed by A New Tax System (Goods and Services Tax) Act 1999 (Cth) and related legislation.
Harmful Code means any computer code which is or may be harmful to the Computer System including (without limitation) “virus”, “malware”, “worm”, “Trojan Horse”, “trapdoor”, “software switch”, “time bomb”, “slicing routine”, deliberate “corruptive code”, “logic bomb”, “disabling routine”, unauthorised “expiration dates” or “bug” as those words are generally understood from time to time within the technology industry and any equivalent or similar harmful, destructive or corruptive mechanisms contained in software.
Indirect, Special or Consequential Loss or Damage means:
(i) any loss of income, profit or business;
(ii) any loss of goodwill or reputation; and
(iii) any loss of value of intellectual property,
and for the avoidance of doubt, does not include loss of Customer Data.
Insolvency Event means the occurrence of any one or more of the following events in relation to a person:
(i) being in liquidation or provisional liquidation or under administration, having a controller (as defined in the Corporations Act 2001 (Cth)) or analogous person appointed to it or any of its property, being taken under section 459F(1) of the Corporations Act 2001 (Cth) to have failed to comply with a statutory demand, being unable to pay or stopping or suspending or threatening to stop or suspend payment of its debts or being otherwise insolvent, taking any step that could result in a person becoming an insolvent under administration (as defined in section 9 of the Corporations Act 2001 (Cth)), entering into a compromise or arrangement with, or assignment for the benefit of, any of its members or creditors;
(ii) any event that is analogous to any of the foregoing events.
Intellectual Property means patents, plant breeders rights, registered or unregistered trademarks and service marks, registered designs, copyrights, database rights, design rights, confidential information, applications for any of the above, and any similar right recognised in any jurisdiction, together with all rights of action in relation to the infringement of any of the above.
Loss means all and any loss, cost, damage, fine, expenses (including legal costs and disbursements), liability, death, injury or other detriment, economic loss including loss of use and loss of trade but excluding Indirect, Special or Consequential Loss or Damage;
Party means a party to the Agreement.
Personal Information means personal information as defined in the Privacy Act.
Personnel means a Party’s employees, officers, agents and subcontractors.
Privacy Act means the Privacy Act 1988 (Cth).
Services means the services described in the Services Proposal.
Service Fees in respect of a Service, means the fees specified in item 7 of the Services Proposal.
Services Proposal means a written proposal, offer or quote provided by BCS to Customer in relation to the Services.
Tax Invoice means a tax invoice that complies with the provisions of the A New Tax System (Goods and Services Tax) Act 1999 (Cth) and related legislation.
Term means the term of the Agreement as set out in clause 2.
Works means, in relation to a Party, any work, matter or thing:
(i) relating to that Party and/ or any related body corporate of that Party’s business or products including (but not limited to) software, data files, procedure manuals, reports, correspondence, technical information, plans, charts, calculations, tables, schedules, video and audio recordings, computer discs and other data; or
(ii) methods, processes, research, analysis, correspondence, reports, articles and other written materials produced by that Party;
in each case, either:
A. created as a result of or by virtue of the performance of the Services; or
B. made using the resources, equipment, property or Confidential Information of that Party and/ or any related body corporate of that Party.
In this Agreement, unless a contrary intention appears:
(i) a reference to the Agreement is a reference to the Agreement as amended, varied, novated, supplemented or replaced from time to time;
(ii) a reference to any legislation or any provision of any legislation includes:
A. all regulations, orders or instruments issued under the legislation or provision; and
B. any modification, consolidation, amendment, re-enactment, replacement or codification of such legislation or provision;
(iii) words or expressions:
A. importing the singular include the plural and vice versa;
B. importing a gender include the other genders;
C. denoting individuals include corporations, firms, unincorporated bodies, authorities and instrumentalities;
(iv) a reference to a Party to the Agreement or any other instrument includes that Party’s executors, administrators, successors and assigns;
(v) where a word or phrase is defined or given meaning, any other part of speech or grammatical form has a corresponding meaning;
(vi) a reference to a Clause or Schedule is a reference to a clause or schedule of the Agreement; and
(vii) any heading, index, table of contents or marginal note is for convenience only and does not affect the interpretation of the Agreement.