This agreement begins on the Start Date and continues indefinitely until terminated under the provisions of this agreement.
The Consultant agrees to provide the Works in accordance with the Proposal and any other works requested by the Client and agreed by the Consultant from time to time:
- (a) within the timeframe(s) set out in the Proposal,
- (b) in accordance with industry best practice.
The Consultant will allow the Client to inspect its work as mutually agreed, provided that such inspection does not interfere with the Consultant’s provision of the Works.
The Consultant may appoint employees, contractors or agents to provide all or part of the services.
- (a) The Consultant may queue Client requests for services until the Client has requested at least an estimated 4 hours of Work.
- (b) The Client acknowledges that performance of the services on this basis may be delayed until an estimated 4 hours of Work has been requested.
- (a) If requested by the Client, the Consultant may agree to provide the Client with Hosting Services sourced from a third party.
- (b) The Client agrees to be bound and abide by such third party terms and conditions as apply to the Hosting Services.
- (c) The Consultant gives no guarantee, and is not responsible for the performance or security of the Hosting Services.
- (d) The Consultant may provide support or training as requested by the Client for the fee agreed with the Consultant.
- (e) The Consultant reserves the right to measure your usage of the services to ensure billing accuracy and technical efficiency.
- (a) The Client acknowledges that the Hosting Services are provided by a third party Hosting Services Provider, who may conduct scheduled, unscheduled or urgent mission-critical maintenance of the hosted services at any time.
- (b) The Consultant will use reasonable endeavours to notify the Client of any scheduled, unscheduled or urgent mission-critical maintenance upon receipt of notice from the Hosting Services Provider.
- (c) The Consultant may conduct scheduled maintenance outside ordinary business hours, on any part of the Hosted Services under its direct control.
The Consultant will use all reasonable efforts in providing the Hosting Services,
- (a) the Client is solely responsible for:
- (i) any defects in its data, software, equipment or network;
- (ii) any support or training other than that expressly agreed to be provided by the Consultant; and
- (iii) ensuring that it continues to comply with the terms and conditions of the Hosting Services Provider for the Hosted Services as notified to the Client from time to time.
- (b) the Consultant does not give any warranty that the Hosted Services will be uninterrupted, error free, lag free or fit for any specific purpose.
- (c) the Consultant is not responsible for any defects, delays or interruptions to the services or equipment caused by the delays, action or inaction of any third parties such as hardware suppliers or installers, other carriers, internet service providers, telecommunications companies or service providers or force majeure events.
The Client is deemed to have accepted the services upon delivery.
The Client is responsible for testing all code produced under this agreement to confirm that it meets their functional needs. Specifically, the Client must conduct prudent user acceptance tests and warrants that they have done so prior to acceptance of the services.
- (a) The Client must pay the fees for any Works as set out in the Proposal.
- (b) The Consultant will not commence the services until the Client has paid any upfront fee set out in the Proposal.
- (c) The Client must pay the fees as set out in the Proposal,
- (d) The Client must pay the fees for the Hosting Services monthly in advance based on usage for the previous month
- (e) The Consultant reserves the right to pass on any fee increases imposed by third party suppliers or service providers.
- (f) All prices listed in the Proposal are exclusive of GST.
- (a) Unless otherwise stated, each tax invoice:
- (i) is payable 7 days from the date of the tax invoice;
- (ii) may be sent by post or email.
- (b) If a cheque or credit card payment is not honoured by the bank, the Client must reimburse the Consultant for any dishonour or other bank fees incurred as a result.
- (a) If the Client reasonably believes that an invoice contains an error, and wishes to dispute an invoice, they must:
- (i) notify the Consultant before the due date of the invoice;
- (ii) pay all undisputed fees on the invoice; and
- (iii) provide detailed information about any disputed fees.
- (b) The Consultant’s records are prima facie evidence of fees owing and paid.
If the Client fails to pay any invoice by the due date, then without prejudice to our other rights or remedies, then until payment is made in full (including for any accrued interest), the Consultant reserves the following rights:
- (a) to charge for interest on all overdue amounts at a rate of 2.5% per month, accruing daily from the due date of the relevant invoice;
- (b) to immediately suspend work of any or all services included in the Proposal and provide the Client with a Notice of Default;
- (c) to immediately suspend work of any or all services under any other Proposal then on foot between the parties;
- (d) to retain a lien over all equipment, materials, data and work in progress, including those owned by the Client in the Consultant’s possession and control; and
- (e) the Client is liable by way of liquidated damages for all amounts payable under this clause 6, plus all costs of debt collection and enforcement, including legal fees on a solicitor and own Client basis.
- (a) The Client must supply clear instructions regarding the Works, and respond to any such questions promptly and clearly.
- (b) The Client must provide all necessary content, images, data, software licences, information or other material necessary for the Consultant to provide the Works, (‘Client Materials’).
- (c) The Client grants to the Consultant (and its employees, contractors and agents, as applicable) a licence to use, copy, modify or adapt any Intellectual Property in the Client Materials as reasonably necessary for the Consultant to provide the services.
The Client warrants that:
- (a) the Client and its representative(s) have all necessary licences and legal right(s) to provide the instructions and Client Materials, and to authorise the Consultant to provide the Works;
- (b) following the Client’s directions will not cause the Consultant to contravene any applicable laws, including Australian consumer law; and
- (c) the Client owns or is authorised to grant the licence in clause 8.1(b), and that following the Client’s directions will not cause the Consultant to infringe upon any third party Intellectual Property rights.
- (d) The Client must provide adequate assurances of these warranties upon request, including providing copies of any relevant licences.
- (a) The Client (or where applicable, any third party owner) retains ownership of all relevant Intellectual Property rights in the Client Materials and such rights are not assigned or transferred to the Consultant.
- (b) The Client grants the Consultant a royalty-free licence to use the Intellectual Property in the Client Materials as reasonably necessary to carry out its obligations under this agreement, including the right to grant sub-licences where reasonably necessary.
- (c) The Consultant may incorporate third party materials such as code libraries and modules, stock photos, and documentation into work provided under this agreement. Use of such third party materials is subject to applicable licensing terms, including creative commons or open source licensing.
- (a) All Intellectual Property rights and materials developed under this agreement vest in and are owned by the Consultant upon creation.
- (b) The Consultant grants the Client a limited licence to Intellectual Property developed under this agreement for the purpose of testing and reviewing the work internally in accordance with this agreement.
- (c) Subject to the payment of all relevant fees in full, the Consultant hereby assigns to the Client all Intellectual Property Rights (including future copyright) in all intellectual property created in connection with the performance of this Contract (Project IP), excluding the Excluded IP.
The Consultant may incorporate open source modules and code into the work performed under this agreement, and the Client agrees to be bound by applicable open source licensing terms. The Consultant will notify the Client with particulars of any open source material incorporated into the work, upon request by the Client.
- (a) Subject to the Client meeting its obligations in accordance with Clauses 6 and 7, the Consultants grants the Client a royalty free licence to use the Excluded IP.
- (b) If the agreement is terminated in accordance with clause 12 or their is a material breach of the agreement including a breach of clauses 6 or 7, the royalty free licence to use the Excluded IP is revoked.
- (c) If the Client wants to continue using the Excluded IP, the Consultant may grant the Client another royalty free licence in accordance with an appropriate licence agreement for an amount to be agreed between the parties.
- (a) Where the Consultant creates any completed project or deliverable under this agreement that has general application, or is likely to be of use to other developers or the general public, or otherwise as required by the terms of an open source license incorporated under clause 8.3, the Consultant reserves the right to publish the relevant code to the general public under open source licensing (such as creative commons or GNU GPL).
- (b) The parties agree that contributing such works to the general public is in the interests of both parties, and is designed to enhance the public image of both parties, as well as contribute to the body of public knowledge.
- (c) Any open source release under this clause shall appropriately name both the Client and Consultant as contributors to the completed work.
- (d) In no event will the Consultant release or disclose any Confidential Information under this clause.
- (a) The Client acknowledges the moral right of attribution of the Consultant (and its employees, contractors and agents) in any work created under this agreement.
- (b) Following completion of the Works (or any discrete project or deliverable), the Consultant may publicise the completed work as part of their portfolio (on their website, at industry conferences, etc.) at their discretion, including:
- (i) a description of the problem addressed by the Works,
- (ii) screenshots, stills or images from the completed Work;
- (iii) a promotional video demonstrating the completed Work, to be uploaded to YouTube and embedded on the website;
- (iv) details of results achieved through deployment and use of the completed Work; and
- (v) a link to the completed Work if released under open source licensing.
- (c) The Client (and where applicable, any third party end user client) grants the Consultant a non-exclusive, royalty-free licence, to use the Intellectual Property in the Client Materials incorporated into the completed Work to the minimum extent necessary to exercise its rights under this clause.
- (a) Each party acknowledges that in the course of performing its obligations under this agreement it may receive Confidential Information which is proprietary and confidential to the other party.
- (b) Each party agrees not to use or disclose the Confidential Information of the other party except to its officers, employees or contractors, and then only to the extent necessary to carry out its obligations under this agreement.
- (c) Despite the clauses above, either party may use or disclose Confidential Information only to the extent necessary to:
- (i) comply with any law, binding directive of a regulator or a court order;
- (ii) comply with the listing rules of any stock exchange on which its securities are listed; or
- (iii) obtain professional advice in relation to matters arising under or in connection with this document where the advisors agree to be bound by the same obligation of confidentiality.
- (a) During the term of this agreement and for 2 years after its termination (for any reason), the Client must not solicit, persuade, entice away or attempt to entice away any of the Consultants Personnel from continuing to be employed by, or act as a consultant to, the Consultant.
- (b) During the term of this agreement and for 2 years after its termination (for any reason), the Client must ensure that its Personnel, any related body corporate of it and their Personnel do not, solicit, persuade, entice away or attempt to entice away any of the Consultants Personnel from continuing to be employed by, or act as a consultant to, the Consultant.
- (c) If the Client does solicit, persuade, entice away or attempt to entice away any of the Consultants personnel the Client will pay to the Consultant 3 times the employees salary or contract amount as the case may be or the equivalent annual salary that the Client has agreed to pay the personnel whichever is the greater.
Either party may end this agreement for any reason by providing the other with 7 days written notice.
The Consultant may immediately suspend the services under a Proposal, and issue the Client with a Notice of Default if the Client:
- (a) fails to provide clear and timely instructions, or provides instructions that the Consultant reasonably considers to breach the Client’s warranties under this agreement or any other Proposal on foot between the parties;
- (b) fails to provide the necessary Client Materials;
- (c) fails to make payment when due under clause 6, under this agreement or any other Proposal on foot between the parties.
The Client may give the Consultant a notice of default if the Consultant:
- (a) fails to provide the services in a reasonably timely and competent manner; or
- (b) fails to meet the required key performance indicators (KPIs), or standards specified in the Proposal.
- (a) Either party may end this agreement immediately by written notice if:
- (i) the other party is guilty of dishonesty, serious misconduct or serious neglect of duty;
- (ii) The other party fails to comply with a Notice of Default within the time specified; or
- (iii) the other party experiences an Insolvency Event.
- (b) The Consultant may end this agreement and any other Proposal on foot between the parties if the Client fails to make payment after being given a Notice of Default under clause 12.2(c).
- (a) If either party ends this agreement for any reason:
- (i) the Consultant may invoice for any Work not previously billed;
- (ii) the Client must pay all of the Consultant’s outstanding invoices whether or not due, under any Proposal on foot;
- (iii) no assignment is effective under clause 8.2(c) until all outstanding invoices are paid (including any invoice issued under sub-clause (i)); and
- (iv) a party not in default may pursue any other rights or remedies available at law against a defaulting party in default subject to clauses 13 and 14.
- (b) If the Consultant ends the agreement under clause 12.2, in addition to any other rights or remedies, the Consultant has a lien over and may retain all Client Materials and work in progress until all outstanding invoices are paid (including any invoice issued under clause 12.5(a)(i)).
- (a) Each party shall indemnify, defend and hold harmless the other party and its directors, officers, agents, employees and sub-contractors against any and all losses, costs, expenses and damages, including but not limited to reasonable legal fees, resulting from its own negligence or malpractice, or reckless or intentional misconduct, or failure to perform its obligations and responsibilities under this agreement.
- (b) The Client agrees to release and indemnify the Consultant against any action, proceeding, claim, demand or prosecution relating to:
- (i) for personal injury and/or property damage as a result of an occurrence in connection with your business;
- (ii) public and/or products liability as defined in the policy wording
- (iii) the rendering of or failure to render professional advice or service provided by or on behalf of the Consultant;
- (iv) the cost of performing, correcting or improving any work undertaken by the Consultant.
- (v) any loss or damage to persons or property (including data), in relation to the Client Material or Works;
- (vi) any downtime, interruption, lost revenue, or consequential loss of any kind whether directly or indirectly arising in connection with the Works;
- (vii) any hardware or software failure, loss of data or any other loss or damage of any kind whether directly or indirectly arising in connection with the Works;
- (viii) any breach of the Client’s warranties under this agreement.
- (c) To the fullest extent allowable at law, the Consultant’s liability under this agreement is limited to (at the Consultant’s election):
- (i) Provision of further services at no charge to rectify any defect in the Services;
- (ii) Refund of an amount paid to the Consultant under this agreement.
- (d) Despite any other provision to the contrary, the Consultant’s total liability under this agreement is capped at a maximum value equal to the total fees received by the Consultant in the previous 12 months under the Proposal and this agreement
- (a) A party must not start court proceedings (except proceedings seeking interlocutory relief) unless it has complied with this clause.
- (b) A party claiming that a dispute, difference or question arising out of this agreement has arisen (Dispute) must give the other party notice of the details of the Dispute (Dispute Notice).
- (c) The parties must attempt to resolve any Dispute by negotiations using the following escalation procedure:
- (i) when a Dispute Notice is given, each party’s respective representatives must first attempt to resolve the Dispute; and
- (ii) if they cannot resolve the Dispute within five Business Days after the Dispute Notice is given, they must refer the Dispute to each party’s chief executive officer or equivalent who must then attempt to resolve it.
- (d) If the parties cannot resolve the Dispute within 10 Business Days after the Dispute Notice is given:
- (i) each party is free to start court proceedings; or
- (ii) the parties may agree to attempt to resolve the Dispute by other means such as expert determination, mediation or arbitration.
- (e) If a party breaches the procedure in this clause in relation to a Dispute, the other party need not comply with this clause in relation to the Dispute.
- (f) The parties’ obligations in this agreement continue, pending the resolution of a Dispute.
- (g) The dispute resolution procedure in this clause does not affect a party’s right to terminate the agreement in accordance with clause 12.
- (h) Each party must pay its own costs of complying with clause.
Each party must pay its own costs of negotiating, preparing and executing this agreement.
Unless otherwise stated, all monetary amounts are expressed in Australian dollars exclusive of GST. If any supply under this agreement is or becomes subject to GST, the Consultant will issue a tax invoice itemising GST in addition to the monetary amounts set out in this agreement.
The parties’ obligations under clauses 6, 7, 8, 9, 10, 11, 12.5, 13 and 14 shall survive the termination of this agreement for whatever reason.
This agreement and all Works agreed between the parties contain the entire agreement between the parties and supersedes all previous negotiations or agreements in relation to each Proposal then on foot.
Neither party is liable for any delay or failure to perform its obligations under this agreement to the extent that such failure is caused by anything outside its reasonable control. Nothing in this clause excuses payment of money due.
The laws of the State of Queensland, Australia apply to this agreement and the parties submit exclusively to the courts of that jurisdiction.
Nothing in this agreement constitutes a partnership or contract of employment. It is the express intention of the Client and Consultant to deny any such relationship.
The parties may only assign or novate this agreement in whole or in part with the prior written consent of the other party. Upon assignment or novation, the parties’ obligations and benefits under this agreement are binding on and shall benefit their respective representatives, successors and assigns.
If any provision of this agreement is ruled by a court to be illegal, invalid, unenforceable or in conflict with any law, it will not affect the validity and enforceability of the remaining provisions.
The Consultant may from time to time vary the terms and conditions. Any variation to these terms and conditions will be notified to the Client and upon notification will be binding on the Client.
Any delay or failure to enforce any rights in relation to a breach by the other party will not be construed as a waiver of those rights.
- Background IP means the Consultant’s Intellectual Property rights (other than Project IP) which are in existence at the date of this agreement or come into existence after the date of this agreement otherwise than in connection with this agreement.
- Business Day means:
- (a). for receiving a notice under clause 14, a day that is not a Saturday, Sunday, public holiday or bank holiday in the place where the notice is received; and
- (b). for all other purposes, a day that is not a Saturday, Sunday, bank holiday or public holiday in Brisbane, Queensland, Australia,
- Client (‘you’) means the entity detailed in the Proposal.
- Confidential Information means all spoken, written or electronically stored information belonging to or relating to either party and includes without limitation:
- (a) any kind of technical, financial or business information;
- (b) details of employees, suppliers, or customers;
- (c) material developed by the Consultant under this agreement;
- (d) Intellectual Property, concepts, know-how and trade secrets; but excludes information in the public domain (other than by default under this agreement) or information independently known to the other party.
- Consultant (‘we’, ‘us’) means MHS Real Pty Ltd ACN 128512167 trading as NetEngine Level 1, 265 Coronation Drive, Milton, QLD 4064, Australia
- Excluded IP means the Background IP and source code and Intellectual Property subject to an “open source” license used in connection with the provision of the Services. Those materials may include open source tools, theories, methods and ideas which are in the public domain and subject to such open source license. Excluded IP also includes boilerplate, precedent and custom code used in the provision of Services, including that developed by the Consultant providing services to other clients, which the Consultant has developed and which constitutes valuable Intellectual Property owned by of the Consultant.
- Fixed Price Services means any Proposal where a fixed price is specified for a defined scope of services.
- Hosting Services means hosting, data storage, scalable computing, cloud, or other like services specified in the Proposal.
- Hosting Service Provider means a third party supplier of the Hosting Services as notified to the Client from time to time.
- Insolvency Event in relation to a party means any of the following:
- (a) an application is made to a court for an order that the party be wound up and the order is not disposed of within 30 business days or an order is made that the party be wound up;
- (b) an application is made to a court for an order appointing a liquidator or provisional liquidator or a liquidator or provisional liquidator is appointed in respect of either party and that order or appointment is not disposed of within 30 business days;
- (c) the party enters into, or resolves to enter into, a scheme of arrangement, deed of company arrangement or composition with, or assignment for the benefit of, all or any classes of its creditors, or it proposes a reorganisation, moratorium or other administration;
- (d) the party resolves to wind itself up, or otherwise dissolve itself, or gives notice of the intention to do so, or is otherwise wound up or dissolved;
- (e) any step is taken to appoint an administrator, a receiver, and/or manager or other like person over the whole or any part of the party’s assets or business;
- (f) judgement is entered against the party for more than $20,000.00, which remains unsatisfied or unappealed for more than 21 days; or
- (g) the party is charged with a criminal offence.
- Intellectual Property and Intellectual Property Rights means all worldwide intellectual property rights including without any limitation neighbouring rights, moral rights, copyrights, trademarks, service marks, trade secrets, know how, inventions, patents, internet domain names, patent applications, moral rights and all other proprietary rights whether registered or not, but excluding the Excluded IP.
- Proposal means the proposal in which these terms and conditions are referenced.
- Notice of default means a notice in writing that:
- (a) states that it is a notice of default under this agreement;
- (b) specifies the default with sufficient detail and particulars;
- (c) gives a reasonable deadline by which the default must be remedied, of not less than 5 business days.
- Restraint Period means the longest enforceable period of:
- (a) 2 years;
- (c) 12 months;
- (d) 6 months; or
- (e) 3 months.
- Start Date means the date you accept the Proposal.
- Services means the services detailed in the Proposal.
- Works means the services to be provided to the Client (or its nominee) by the Consultant, as detailed in the proposal which may be updated from time to time.
- Where applicable, all terms used in this document have the same meaning as defined in the Proposal to this agreement;
- the singular includes the plural and vice versa, and a gender includes other genders;
- another grammatical form of a defined word or expression has a corresponding meaning;
- a reference to a clause, paragraph, schedule or annexure is to a clause or paragraph of, or schedule or annexure to, this agreement, and a reference to this agreement includes any schedule or annexure;
- a reference to a document or instrument includes the document or instrument as novated, altered, supplemented or replaced from time to time;
- a reference to A$, $A, dollar or $ is to Australian currency;
- a reference to time is to Australian Eastern Standard time;
- a reference to a party is to a party to this agreement, and a reference to a party to a document includes the party’s executors, administrators, successors and permitted assigns and substitutes;
- a reference to a person includes a natural person, partnership, body corporate, association, governmental or local authority or agency or other entity;
- a reference to a statute, ordinance, code or other law includes regulations and other instruments under it and consolidations, amendments, re-enactments or replacements of any of them;
- a word or expression defined in the Corporations Act has the meaning given to it in the Corporations Act;
- the meaning of general words is not limited by specific examples introduced by including, for example or similar expressions;
- any agreement, representation, warranty or indemnity by two or more parties (including where two or more persons are included in the same defined term) binds them jointly and severally;
- any agreement, representation, warranty or indemnity in favour of two or more parties (including where two or more persons are included in the same defined term) is for the benefit of them jointly and severally;
- a rule of construction does not apply to the disadvantage of a party because the party was responsible for the preparation of this agreement or any part of it;
- if a day on or by which an obligation must be performed or an event must occur is not a Business Day, the obligation must be performed or the event must occur on or by the next Business Day; and
- headings are for ease of reference only and do not affect interpretation.