1. Agreements for the supply of products and services
1.1 Each time a Quotation is accepted by you, a separate contract will be entered into consisting of the following documents (each, an Agreement):
(a) this Terms of Service;
(b) the Quotation;
(c) the applicable Service Schedule/s; and
(d) the Acceptable Use Policy.
1.2 To the extent of any inconsistency between the documents listed in subclauses 1.1(a) to 1.1(d), the document listed first in clause 1.1 shall prevail.
1.3 Our Quotations are only open for acceptance for duration of the period specified in the applicable Quotation. We have no obligation to supply any products or services under an Agreement other than as expressly required by the applicable Quotation(s).
1.4 We may modify this Terms of Service, any Service Schedule or our Acceptable Use Policy at any time and from time to time, in our absolute discretion. The modified versions will only apply to Agreements that we subsequently enter into with you. We will provide you with a copy of the modified versions or upload them to our website. It is your responsibility to ensure that you have read and understood them.
2.1 Each Agreement will commence on the commencement date specified in the Quotation, or if the Quotation does not specify a commencement date, the Agreement will commence on the date of your approval of the Quotation.
2.2 If a contract term, initial term or minimum period is specified in a Quotation (each, a Minimum Period), upon expiry of the Minimum Period, the Agreement will automatically extend for subsequent consecutive periods each of equivalent length to the Minimum Period (each, a Renewal Period), until and unless either party notifies the other party in writing that it wishes to terminate the Agreement at least 90 days prior to the expiry of the Minimum Period or the then current Renewal Period (as applicable) (time being of the essence), in which case if such notice is provided, the Agreement will terminate at the end of the Minimum Period or the then current Renewal Period (as applicable).
2.3 If there is no Minimum Period, the Agreement will continue from the Commencement Date until the Ordered Products and Services have been delivered and thereafter until either party terminates the Agreement on 30 days’ prior written notice to the other party.
3. Supply of Ordered Products and Services
3.1 We will use our best endeavours to supply and/or procure the supply of the products and/or services specified in a Quotation (respectively Ordered Products or Ordered Services and collectively, Ordered Products and Services) to you, substantially in accordance with any Specifications.
3.2 You must provide all necessary:
(a) cooperation, permissions, authorisations, assistance and consents (including all relevant third-party and End User consents and authorisations); and
(b) access to such information (including account logins), Your Equipment, Personnel, End Users, servers, networks, data, content, facilities, documentation, records, resources, records, equipment and premises,
as reasonably required by us to supply and/or procure the supply of the Ordered Products and Services to you.
3.3 Where required by us, you must also arrange safe and timely access to Your Premises for our Personnel and Third Party Providers to provision, install, support and maintain the applicable Ordered Products and Services. Support and maintenance are not within the scope of the Agreement unless the applicable Quotation clearly states that they will be provided.
3.4 We are not liable for:
(a) the content, security or communications that you receive, access or rely upon when using Ordered Products and Services;
(b) ensuring that any data sent or received over any Ordered Products and Services is sent or received correctly and to the maximum extent possible by law, we and our Third Party Providers do not have any responsibility for loss of data, delays, non-deliveries or mis-deliveries of data;
(c) the installation of electrical wiring, removal of doors, widening of entrances or any other structural work of any description at Your Premises. You must procure all such work to be carried out prior to our, and/or our Third Party Providers’, attendance at Your Premises for the purposes of carrying out any installation, configuration or setup of any Ordered Products and Services;
(d) ensuring that Your Equipment is compatible or interoperable with Ordered Products and Services; and
(e) all and any acts and omissions of your Personnel and End Users.
3.5 With respect to any proposed installation, commencement or start dates specified in a Quotation:
(a) time is not of the essence and such dates are estimates only; and
(b) where our Personnel or Third Party Providers are unable to provision any Ordered Products and Services by any agreed or estimated installation, commencement or start date for any reason:
(i) we may terminate the relevant Quotation at any time prior to the provisioning being completed, by notice to you, without liability; and
(ii) you may terminate the relevant Agreement prior to the provisioning being completed, by notice to us,
without liability if the Ordered Products and Services are not installed or provisioned (as applicable) within 60 days after the agreed or estimated installation, commencement or start date for any reason; and
(c) you must pay all costs and expenses that we incur as a result of any delay in the installation, procurement, commencement and/or implementation of Ordered Products and Services caused directly or indirectly by you or your Personnel.
4. Performance and availability of Ordered Products and Services
4.1 We warrant that Ordered Products and Services will perform materially in accordance with the Specifications.
4.2 We do not warrant that Ordered Products and Services will be:
(a) uninterrupted or error-free, free from fault or external intrusion; or
(b) suitable for or will meet your requirements,
unless such warranties are expressly set out in a Quotation or Service Schedule or cannot be excluded from the Agreement under Applicable Law.
4.3 If there are Service Levels specified in a Quotation or Service Schedule:
(a) we will use our best endeavours to ensure that the applicable Ordered Services comply with those Service Levels; and
(b) any breach of the Service Levels will not constitute a breach of the Agreement.
4.4 If there are Service Credits specified in a Quotation or Service Schedule, your entitlement to the Service Credits is your sole remedy and our sole liability for any non-performance or unavailability of the Ordered Services that they relate to.
4.5 We may in our sole discretion, vary Ordered Services at any time or from time to time, provided that such variation does not have a material adverse effect on the performance of the Ordered Services.
5. Your Equipment and Our Equipment
5.1 An Agreement does not transfer or assign title to Your Equipment to us.
5.2 An Agreement does not transfer or assign title to Our Equipment to you unless it expressly provides otherwise.
5.3 You must not, except as authorised in writing by us, grant or permit the grant or existence of any Security Interest in Our Equipment.
5.4 In the event that any of Our Equipment is left on Your Premises for any purpose and unattended by us, you acknowledge that you are responsible for the proper care of those items of Our Equipment and must take all reasonable steps necessary to ensure that those items of Our Equipment are not damaged or stolen. You acknowledge that, you shall be liable to us for any damage or theft of Our Equipment whether caused by you, your Personnel or any third party.
5.5 You must promptly notify us if any of Your Equipment becomes subject to any Security Interest or Purchase Money Security Interest (as defined under the PPSA) and you hereby indemnify us from and against all and any loss and/or damage incurred by us caused by any of the foregoing matters or the repossession of Your Equipment or any other action taken by any person that is a secured party in respect of Your Equipment.
5.6 You must keep Your Equipment insured for its full replacement value at all applicable times. You must provide us with a certificate of currency in respect of that insurance within 3 Business Days of a request by us at any time.
6. Your Data
6.1 Data in any form entered into, uploaded into or generated from Ordered Products and Services (Your Data) is, as between you and us, owned by you and the Agreement does not transfer any IPR in Your Data to us.
6.2 We will not use Your Data other than to:
(a) perform our obligations under the Agreement; and
(b) comply with our legal obligations.
6.3 You must ensure that:
(a) your End Users are fully entitled (and where applicable, licensed) to disclose to us all of Your Data that is entered into Your Equipment and Ordered Products and Services;
(b) all of Your Data is accurate and up-to-date;
(c) the collection, use, disclosure and processing of Your Data by us, our Personnel and Third Party Providers does not breach any Applicable Law or any person’s rights; and
(d) you will handle all notifiable data breach obligations under Applicable Law in respect of Your Data, including in respect of any End User’s personal information that is jointly held by us and you.
6.4 Your Data may be hosted by us or our Third Party Providers on hardware or infrastructure located in or outside Australia. We may or may not own the infrastructure or the premises in which the infrastructure is located.
6.5 Data loss and corruption is unpredictable and can occur from time to time. In the event of any loss, destruction, alteration, corruption or damage to any of Your Data that you engage us to host:
(a) your sole and exclusive remedy as against us, shall be to request that we use reasonable endeavours to restore that data from the latest back-up that we or our Third Party Providers maintain; and
(b) we shall not have any liability for any such loss, destruction, alteration, corruption or damage or for any unauthorised access to or disclosure of Your Data unless it is caused by our wilful misconduct or intentional breach of the Agreement.
6.6 You hereby indemnify us in respect of any loss and damage that we incur as a result of any third party claim that the transmission, storage, hosting, disclosure, processing, access and/or use of Your Data by us for the purposes of the Agreement, or access to and/or use of Your Data by any End User, infringes the IPR and/or other rights of any person or breaches any Applicable Law.
7. Our Intellectual Property Rights
7.1 As between you and us, we own all IPR in:
(a) Ordered Services (including any software, Source Code, Object Code, databases and database structures that are incorporated into or supplied in connection with the Ordered Services); and
(b) all Output (except to the extent that it comprises Your Data) made available in or via the Ordered Products and Services,
(collectively, Our IPR).
7.2 You must not represent that you own any of Our IPR.
7.3 You must not directly or indirectly do anything that would or might invalidate, jeopardise, limit, interfere with or put in dispute Our IPR and you must not do or authorise the commission of any act that would or might invalidate or be inconsistent with our (or our licensors’) ownership of Our IPR.
7.4 You hereby assign to us all and any IPR in all and any comments in connection with Ordered Services and any requests for new features, that you and/or your Personnel may make or suggest regarding them (each, an Improvement Suggestion). Each such comment and Improvement Suggestion becomes our sole and exclusive property. This assignment is effective when you or your Personnel make the comment or disclose the Improvement Suggestion to us including under section 197 of the Copyright Act 1968 (Cth) and in equity. You must procure from your Personnel an irrevocable and freely given written consent from each of them to the infringement of any Moral Rights that they may have in any such Improvement Suggestions by us and by any third parties who we authorise to operate or modify the Ordered Products and Services.
8.1 Each party may receive information from the other party (disclosing party) during the Term that is marked as confidential or is deemed confidential by Applicable Law (Confidential Information).
8.2 The party who receives Confidential Information from the disclosing party (receiving party) may not, at any time without the disclosing party’s prior written consent, use and/or disclose any Confidential Information, other than to exercise its rights and perform its obligations under the respective Agreement or to comply with Applicable Law.
8.3 Where we are required to do so under any contract with any supplier, we may disclose your Confidential Information to our suppliers, including where the supplier provides us with services that we use to provide any Ordered Services.
8.4 Confidential Information does not apply to information:
(a) that is independently developed, obtained or known by the receiving party, without breaching any obligation of confidence to the disclosing party;
(b) that the recipient can prove was already known to it at the time of disclosure by the disclosing party;
(c) that is in the public domain, except where due to a breach of the Agreement or any breach of any obligation of confidence or Applicable Law; or
(d) that the receiving party must disclose under the rules of any stock exchange on which it or its holding company is listed.
9. Acceptable and Fair Use
9.1 You must ensure that any person who accesses and/or uses any Ordered Products and Services (each, an End User):
(a) complies with all applicable Documentation, Applicable Law, our directions and policies (including any security policy) in the course of such access and/or use;
(b) does not infringe or permit any person to infringe any of our, or our licensors’, IPR;
(c) does not consume more of an Ordered Service than any limit on consumption specified in an Quotation or applicable Service Schedule, or where no so specified, the average consumption that we specify from time to time, calculated by reference to the consumption of that Ordered Service by all other End Users and end users of our other customers;
(d) provides us with access to Your Data, Personnel, Your Equipment and/or any cooperation or assistance necessary for us to carry out our duties under the Agreement;
(e) does not provide their passwords or other access credentials to any other person;
(f) immediately notifies us of any unauthorised or suspected unauthorised use or disclosure of any access credentials for Ordered Products and Services; and
(g) uses reasonable and appropriate security measures and precautions when using any Ordered Products and Services.
9.2 You must:
(a) ensure that you maintain a reliable internet connection for us to connect to Your Equipment, Personnel, End Users, servers, networks, data, content, facilities, documentation, records, resources, records, equipment and premises, where reasonably required by us to provide any Ordered Services;
(b) ensure that your premises are suitable and maintained in a manner suitable for the use of any Ordered Products and Services;
(c) maintain all building cabling (existing and new) in accordance with all Australian industry standards and guidelines necessary for any Ordered Products and Services to operate; and
(d) not do anything that interferes with or prevents the proper functioning of any Ordered Products and Services.
9.3 The availability of any Ordered Services will be subject to any bandwidth limitations, internet and network downtime and congestion, database size limitations, throughput limitations and other technical and non-technical limitations or restrictions as set out in the Specifications and/or Documentation.
9.4 Unless otherwise expressly specified in the Agreement, you must not, and must not permit any person to, use any Ordered Services:
(a) to copy, alter, modify, tamper with, create derivative works from, reproduce, resell, transfer to a third party, reverse assemble, reverse engineer, reverse compile or enhance any Ordered Services or any trade marks, any patent or copyright notices, or any confidentiality legend, notice or other means of identification, used on or in relation to any Ordered Services;
(b) in any manner that breaches Applicable Law or violates all or any legal rights of any person in any jurisdiction (including any person’s privacy, such as by way of identity theft or “phishing”);
(c) to license, sublicense, resell, assign, novate, transfer, distribute, or provide others with access to, any Ordered Services;
(d) to “frame”, “mirror” or serve any Ordered Services on any web server or other computer server over the Internet or any other network;
(e) to store, transmit, distribute or introduce malicious programs into our systems, network or servers (e.g., viruses, worms, trojan horses, e-mail bombs);
(f) to make fraudulent or misleading offers of goods or services;
(g) to carry out security breaches or disruptions of network communication (security breaches include, accessing data of which you are not an intended recipient, logging into a server or account that you are not expressly authorised to access, corrupting any data, network sniffing, pinged floods, packet spoofing, denial of service and forged routing information for malicious purposes);
(h) to execute any form of network monitoring which will intercept data not intended for you; or
(i) to circumvent user authentication or security of any of our hosts, networks or accounts or those of our customers or Third Party Providers,
(collectively, our Acceptable Use Policy).
10.1 You must pay the Fees to us in accordance with the Payment Terms and any applicable Service Schedule, without setoff, deduction or counterclaim.
10.2 Except as expressly specified otherwise in the Payment Terms, all invoices issued by us must be paid within 30 days from the date of issue of an invoice.
10.3 If you pay by credit card, you acknowledge that a processing fee will apply to Visa, Mastercard and American Express transactions. Rates are specified at checkout.
10.4 Except as otherwise set out in a Quotation, the Fees are exclusive of all taxes such as GST and you agree to pay all such taxes to us, in respect of any Supply (as that term is defined in the GST Law) made for the purposes of the Agreement. You must pay all such taxes at the same time as the Fees.
10.5 Without limiting any other rights or remedies available to us, we may suspend our obligations under this Agreement and your access to Ordered Services including cancelling subscriptions to the Ordered Services if you fail to pay the Fees in accordance with the Payment Terms.
10.6 If you fail to make any payment due to us under this Agreement in accordance with the Payment Terms then, without limiting our rights and remedies, you shall pay interest on the overdue amount at a rate equal to 10% per annum above the current overdraft rate that we have with our principal banker from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment, and you shall pay the interest together with the overdue amount upon demand by us. You hereby indemnify us from and against all and any legal costs and disbursements (on a full indemnity basis) that we incur in connection with the proceedings set out in this clause 10.6.
10.7 Ordered Products and Ordered Services shall remain our property until you fulfil your payment obligations under this clause 10.
10.8 We may increase the Fees payable under an Agreement:
(a) On 1 July each year by the greater of: [i] 5% per annum; and [ii] the most recently published Consumer Price Increase (CPI) movement (All Groups CPI, Australia, annual movement (%)) published by the Australian Bureau of Statistics (ABS) or any replacement thereof published by the ABS; and
(b) at any time to accommodate any currency fluctuations.
10.9 In the event of a significant price increase from vendors or due to serious environmental factors affecting the supply of labour, electricity and other aspects necessary to our operations (Price Increase), as determined by us, acting reasonably, we reserve the right to pass on the Price Increase to you in our Fees.
11.1 Ordered Products and Services and/or any Output does not constitute financial, legal or other advice. You must obtain all appropriate professional, financial, legal and other advice as applicable before relying on any Output. You must not represent (either expressly or impliedly) that any Output is our advice.
11.2 We are not liable for any failure to perform any Ordered Services caused by any breach of the Agreement by you or your Personnel.
11.3 We are not liable for any failure by you or your Personnel to comply with our Acceptable Use Policy.
11.4 Neither party is liable to the other party for any loss of profits, loss of business opportunity, loss of revenue (other than caused by your failure to pay the Fees or as specified in clause 13.7), loss of savings or loss of data, whether arising in contract, tort (including negligence) or otherwise, and whether the loss or damage is foreseeable or not.
11.5 Our aggregate liability for all claims for loss or damage that you may incur due to our breach of the Agreement, that is not otherwise excluded by the terms and conditions of the Agreement, is capped at an amount equivalent to the quantum of the Fees paid by you under the Agreement for the Ordered Products or Services to which the breach relates, and shall be reduced to the extent that you, your End Users and/or any Third Party Provider caused or was responsible for such loss or damage.
11.6 Where liability for breach of any guarantees under the ACL can be limited, our liability arising from any breach of those guarantees (if any) is limited, at our option: (i) with respect to the supply of goods, to the replacement or repair of the goods or the cost of resupply or replacement of the goods; and/or (ii) with respect to services, to the supply of the services again or the cost of re-supplying the services again.
11.7 Other than any non-excludable guarantees implied into this Agreement under the ACL (if any), all conditions, warranties and guarantees that would be implied in the Agreement are hereby excluded from the Agreement.
11.8 Either party may obtain urgent interlocutory relief from a court of competent jurisdiction to prevent any actual or potential breach of the Agreement.
11.9 Each party shall at its own cost and expense effect and maintain throughout the Term workers compensation insurance as required under Applicable Law.
12. Force Majeure Event
12.1 We are not liable for any failure by us to perform our obligations under the Agreement if such failure was caused by a Force Majeure Event. If a Force Majeure Event that prevents us from performing our obligations under the Agreement continues for 45 consecutive days, either party may terminate the Agreement by prior written notice.
13.1 A party may terminate the Agreement by written notice to the other party if the other party (the defaulting party) commits a breach of the Agreement that is not remediable, or if the breach is a remediable breach and the defaulting party fails to remedy the breach within 14 days of written notice to the defaulting party requiring the breach to be remedied.
13.2 We may terminate or suspend our provision of any Ordered Products and Services if:
(a) you fail to pay any Fees to us in accordance with the Payment Terms;
(b) you, your Personnel or your End Users infringe or breach our Acceptable Use Policy; or
(c) a Third Party Provider ceases to provide hardware, software, products or services that we require to comply with our obligations to supply any Ordered Products or Services to you.
13.3 If you do not follow our reasonable advice in respect of the repair or replacement of any Ordered Products or Services (or any of Your Equipment that is relevant to the supply of Ordered Products or Services), we may, by notice to you, elect to suspend the supply of the Ordered Products or Services to you.
13.4 Either party may terminate the Agreement by written notice to the other party if the other party suffers an Insolvency Event.
13.5 We may terminate this Agreement by written notice to you if you undergo a Change of Control.
13.6 If the Agreement is terminated for any reason:
(a) you shall, at our option, promptly return or destroy all copies of our Confidential Information in your possession or control; and
(b) any rights granted by us to you pursuant to the Agreement immediately terminate.
13.7 If an Agreement is terminated prior to the expiry of the Minimum Period (other than due to our breach or if we suffer an Insolvency Event), you will pay 100% of any outstanding amounts that we calculate or reasonably estimate would have been payable by you under the Agreement for the remainder of the Minimum Period (collectively, the Outstanding Amount). If an Outstanding Amount is payable, we shall send you a tax invoice in respect of the Outstanding Amount and you will pay that invoice within 30 days. You agree that: (i) payment under this clause is not intended to be, and will not, be punitive and you will compensate us for reasonable loss and damage resulting from early termination of the Agreement; and (ii) the Outstanding Amount is less than the total loss and damage that we will suffer from the early termination of the Agreement.
13.8 Any rights or obligations that, by their nature, survive termination shall so survive, including any provision dealing with confidentiality, IPR, liability, dispute resolution and jurisdiction.
13.9 Termination does not affect any accrued rights of either party.
14.1 All notices required or permitted to be made under the Agreement shall be in writing and shall be deemed delivered if:
(a) delivered in person;
(b) sent by post to the recipient’s postal addresses identified in the relevant Quotation; or
(c) sent by email to the recipient’s email addresses identified in the relevant Quotation.
14.2 Notice given under subclause 14.1(a) shall be effective upon delivery.
14.3 Notice given under subclause 14.1(b) shall be effective 6 Business Days after posting if posted domestically in Australia, or 20 Business Days after posting to or from any other country.
14.4 Notice given under subclause 14.1(c) shall be effective on the day on which it is transmitted if the sender receives a read or delivery receipt confirming delivery or receipt of the email, or on the next Business Day unless a notification failure email is received, or otherwise when a reply to the email is received.
14.5 Any party may change its address for notice hereunder by giving written notice to the other party in accordance with this clause 14.
15.1 A party may not assign its rights or novate its obligations under the Agreement without the prior written consent of the other party (such consent not to be unreasonably withheld, conditioned or delayed).
15.2 If any provision of the Agreement is deemed invalid by a court of competent jurisdiction, the remainder of the Agreement shall remain enforceable.
15.3 The relationship between you and us is non-exclusive and nothing in the Agreement will prevent us from supplying any goods or services to any third party in our absolute discretion. You and we are independent contracting entities and nothing contained in the Agreement creates any relationship of partnership, employment, joint venture or agency between the parties.
15.4 The Agreement is the entire agreement between you and us about its subject matter and supersedes all other proposals, arrangements, representations or agreements between the parties about its subject matter.
15.5 The Agreement may be amended only by a written document signed by the parties and a provision of or a right under the Agreement may not be waived or varied except in writing signed by the party to be bound.
15.6 The Agreement is governed by the laws in force in Western Australia Each party submits to the exclusive jurisdiction of the courts located in that State and the courts of appeal from them in relation to any proceedings and disputes concerning the Agreement.
16. Definitions and Interpretation
16.1 In this Terms of Service, words in bold font in parentheses have the meanings given to them therein. In addition, the following words have the following meanings:
ACL means schedule 2 to the Competition and Consumer Act 2010 (Cth).
Applicable Law means any legislation, rule of the general law, including common law and equity, judicial order or consent or requisition from, by or with any governmental agency, including any Data Protection Law, in any applicable jurisdiction.
Business Day means any day from Monday to Friday excluding public holidays in Western Australia.
Business Hours means 9:00am – 5:00pm on Business Days.
Change of Control means a change in the beneficial ownership of more than 25% of: (a) the issued share capital of a company; or (b) the legal power to direct or cause the direction of the general management of the company.
Data Protection Laws means all applicable data protection and privacy laws in any applicable jurisdiction, including the Privacy Act 1988 (Cth).
Documentation means any user manuals, notes, technical instructions and documentation provided by us in respect of the Ordered Products and Services.
Fees means any fees and charges set out in the Agreement.
Force Majeure Event means war, industrial action, government action, natural disaster, flood, labour disturbance, pandemic, harmful code or component, communication outage, internet outage, interruption of service, denial of service attack, breach of contract by a Third Party Provider, fire, threatened or actual act of terrorism, earthquake, act of God, or other circumstances beyond our reasonable control.
GST and GST Law have the meaning given by the A New Tax System (Goods and Services Tax) Act 1999 (Cth)).
Insolvency Event means, in respect of a party: (a) the party ceases to carry on business, is unable to pay its debts as and when they fall due, or is deemed to be insolvent or bankrupt; (b) a receiver or a liquidator or provisional liquidator or an administrator is appointed to the party, or an application (including voluntary application filed by that party) is lodged or an order is made or a resolution is passed for the winding up (whether voluntary or compulsory) or reduction of capital of that party; (c) the party enters into an arrangement with its creditors; (d) where the party is a partnership, the partnership is dissolved or an application is made for its dissolution; (e) the party suspends payment of its debts to the other party or a third party, or the party takes the benefit of any law for the relief of insolvent debtors; or (f) anything analogous or having a substantially similar effect to any of the events described in (a) through (e) above occurs under the law of any applicable jurisdiction.
IPR means all copyright, trademark rights, patent rights, and design rights, whether registered or unregistered, and all other rights to intellectual property as defined under article 2 of the Convention Establishing the World Intellectual Property Organisation, and all rights to enforce any of the foregoing rights.
Moral Rights has the meaning given in the Copyright Act 1968 (Cth).
Object Code means Source Code in compiled or binary form.
Output means any reports and other output generated by any Ordered Services.
Ordered Product has the meaning given in clause 3.1.
Ordered Service has the meaning given in clause 3.1.
Our Equipment means any equipment, systems, software, networks, servers, hardware, cabling, ports, switches or other ancillary equipment or tools owned or operated by us.
Payment Terms means payment terms set out in the applicable Quotation.
Personnel means a party’s employees, agents, officers and subcontractors. We are not your Personnel and you are not our Personnel for the purposes of the Agreement.
PPSA means Personal Property Securities Act 2009 (Cth) as amended from time to time and any regulations thereunder.
PPSR means the Personal Property Securities Register established under the PPSA.
Quotation means a document entitled “Quotation”, “Proposal” or similar issued by us to you and accepted by you (either by signing it or otherwise).
Service Schedule means a document with that title that we supply to you.
Source Code means human readable computer code.
Specifications means the technical specifications for Ordered Products and Services as set out in, referred to from, or attached by us to a Service Schedule.
Term means the term of an Agreement determined pursuant to clause 2.
Third Party Providers means any of our third party suppliers, subcontractors or providers who provide any goods or services that we rely on, supply or resupply as part of Ordered Products and Services.
We, our and us, means FOIT Group Pty. Ltd. ABN 93 133 965 705 of Suite 904, Level 9, 109 Pitt Street, Sydney NSW 2000.
Your Equipment means any systems, software networks, servers, equipment, hardware, cabling, ports, switches and/or other ancillary equipment or tools owned or operated by you or on your behalf, other than Our Equipment. For the avoidance of doubt, Our Equipment is not Your Equipment.
Your Premises means any premises owned, controlled or occupied by you specified in a Quotation.
16.2 Unless the context requires otherwise:
(a) a reference to “a party” means you or us (as the context dictates) and a reference to “the parties” means you and us;
(b) headings and underlinings are for convenience only and do not affect the construction of the Agreement;
(c) a provision of the Agreement will not be interpreted against a party because the party prepared or was responsible for the preparation of the provision, or because the party’s legal representative prepared the provision;
(d) currency or “$” refers to Australian dollars;
(e) a reference to a statute or regulation includes amendments thereto;
(f) a reference to time is to time in Western Australia;
(g) a reference to a person includes a reference to an individual, a partnership, a company, a joint venture, government body, government department, and any other legal entity;
(h) the words “such as”, ”including”, “particularly” and similar expressions are not words of limitation and shall be interpreted as if the words ‘but not limited to’ immediately followed them in each case; and
(i) a reference to the singular incudes the plural and vice versa.