1.1 These terms of business (Terms), together with the attached Statement of Work, will form the agreement between Kodez Pty Ltd (ABN13 614 647 728) (Kodez) and you (Agreement).
1.2 If there is an inconsistency between these Terms and the Statement of Work, then:
(a) the Statement of Work will prevail to the extent that it is expressly stated to override specific provisions of these Terms; but
(b) in all other cases, these Terms will prevail to the extent of that inconsistency.
1.3 Where a person purports to execute a Statement of Work for you or on your behalf, that person warrants and represents on your behalf that he or she has actual authority to bind you to this Agreement.
1.4 Either party may request changes to any aspect of the Terms or the Statement of work. However, until a change is agreed in writing, both parties must continue to act in accordance with the latest agreed version of the Agreement.
2.1 This Agreement records the entire agreement between the parties in relation to its subject matter and supersedes all previous negotiations, representations, warranties, arrangements, proposals, preliminary agreements and statements, whether express or implied, pertaining to its subject matter.
2.2 By entering into this agreement, you warrant and represent that you have read and understood these Terms and the Statement of Work. In entering into this Agreement with you, Kodez is relying on this warranty and representation.
(a) perform the Services (including by providing any Deliverables)as specified in the Statement of Work; and
(b) perform the Services in a professional manner with due care and skill.
4.1 This Agreement begins on the commencement date set out in the Statement of Work or, if no start date is specified, on the date Kodez first provides Services to you in relation to this Agreement.
4.2 Unless terminated earlier in accordance with clauses 18 or 19, this Agreement ends on the end date set out in the Statement of Work, or, if no end is specified, on the date Kodez completes its obligations under the Statement of Work.
4.3 The completion of the Agreement, or the acceptance or the acceptance of Deliverables, will only be subject to an acceptance testing process if specified in the Statement of work
5.1 Unless otherwise expressly stated in the Statement of Work, dates in any timetable set out in the Statement of Work are intended for planning and estimating purposes only and are not contractually binding.
5.2 Where the Statement of Work specifies a fixed commitment to timeframes, Kodez will use its commercially reasonable efforts to meet those timeframes. However, you acknowledge that timeframes may not be met to the extent that you or your personnel cause delays, or any assumption in this agreement proves incorrect. In particular, timeframes are based on the assumption that Kodez will receive the full cooperation of your personnel and the commitment of your organization.
Subject to clause 7, Kodez will use reasonable efforts to ensure that the personnel named as 'Key Personnel' in the Statement of Work are available to perform the Services for the period specified in the Statement of Work. If Kodez is unable to do this, it will give you as much notice of any changes as it reasonably can, and will provide you with details of replacement personnel with similar levels of expertise.
7.1 Subject to this clause 7, you may, at any time during the term of the Agreement, suspend the provision of Services by notice in writing to Kodez to that effect.
7.2 You may issue no more than two suspension notices under clause 7.1. The duration of any such suspension must not be less than 10Business Days.
7.3 Each notice issued by you under clause 7.1 (Suspension Notice) must set out:
(a) the date on which the suspension will commence (Suspension Commencement Date);
(b) the reasons for the suspension;
(c) the estimated likely duration of the suspension (which must not be less than 10 Business Days); and
(d) whether you require Kodez to continue to comply with clause 6 after the Suspension Commencement Date.
7.4 During any period of suspension under this clause 7 (Suspension Period):
(a) Kodez's obligation to perform the Services is suspended; and
(b) (if the Suspension Notice requires Kodez to continue to comply with clause 6) Kodez will use reasonable efforts to ensure that the personnel named as 'Key Personnel' will be available to perform the Services following the issue of a Recommencement Notice in accordance with clause 7.6
7.5 Kodez may invoice you for, and you must pay Kodez for, any out-of-pocket expenses necessarily or reasonably incurred by Kodez, or increased Charges that may arise, in the course of or in connection with a suspension of the Services by you.
7.6 You may, during a Suspension Period, notify Kodez in writing that you wish Kodez to recommence the performance of the Services (Recommencement Notice). Kodez will use reasonable efforts to promptly recommence performance of the Services following receipt of a Recommencement Notice.
7.7 If you specify in a Suspension Notice that you require Kodez to continue to comply with clause 6, you must pay Kodez the holding charge as specified in the Statement of Work. In all other cases, Kodez is released from its obligation to comply with clause 6, such release to apply at all times after the Suspension Commencement Date (including following the recommencement of the Services).
7.8 If, at any time during the term of this Agreement, the total aggregate Suspension Period exceeds 60 Business Days, Kodez may terminate this Agreement by notice in writing to you to that effect.
You nominate the persons named in the Statement of Work (each, an Authorised Person) as persons who may direct and instruct Kodez for the purposes of this Agreement. You warrant and represent that instructions and directions given by an Authorised Person are instructions and directions given by you to Kodez, and Kodez is entitled to rely on those instructions and directions as if they were given by you.
9.1 You must pay Kodez the fees and expenses set out in the relevant Statement of Work(Charges). The Charges:
(a) must be paid in Australian dollars; and
(b) exclude GST and all other applicable taxes unless otherwise specified in the Statement of Work.
9.2 You must pay the Charges within 14 days from the date of any invoice issued to you.
9.3 If any amount payable by you to Kodez under this Agreement is not paid when due, Kodez may do any one or more of the following:
(a) charge you interest on the unpaid amount, calculated daily at the rate of 1% greater than the Commonwealth Bank of Australia's business lending rate then applying;
(b) recover from you (as a debt due) any and all reasonable expenses(including legal costs on a solicitor and own client basis, and contingent expenses such as debt collection commission) incurred byKodez in recovering monies due from you;
(c) suspend the performance of the Services (without prior notice to you);
(d) vary the timing for the performance of Services until after you have paid Kodez any amounts then outstanding; and/or
(e) require advance payment to perform the Services(including any amounts that would become payable to Kodez on or after the completion of this Agreement).
10.1 In this clause 10, a word or expression defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) has the meaning given to it in that Act.
10.2 Any consideration to be paid or provided for a supply made under or in connection with this Agreement, unless specifically described in this Agreement as GST inclusive, does not contain an amount on account of GST.
10.3 Despite any other provision in this Agreement, if a party (Supply Maker) makes a supply under or in connection with this Agreement on which GST is imposed (not being a supply the consideration for which is GST inclusive), the consideration payable or to be provided for that supply under this Agreement but for the application of this clause (GST exclusive consideration) is increased by, and the recipient of the supply must also pay to the Supply Maker, an amount equal to the GST payable by the SupplyMaker on that supply.
10.4 If a payment to a party under this Agreement is a reimbursement or indemnification, calculated by reference to a loss, cost or expense incurred by that party, then the payment will be reduced by the amount of any input tax credit to which that party is entitled for that loss, cost or expense.
11.1 If Kodez will perform Services at your premises, you must provide Kodez with all office and other accommodation and facilities (including computer and network facilities) that Kodez may reasonably require to perform the Services. You must also provide Kodez with copies of all relevant policies with which you want Kodez to comply (such as workplace health and safety and computer security policies).
11.2 If your personnel are to attend at Kodez's premises, you must ensure that:
(a) your personnel comply with Kodez's policies provided to you, including (without limitation) Kodez's workplace health and safety and computer security policies; and
(b) you provide your personnel with all facilities(including computer and other hardware) that your personnel may reasonably require to perform their work unless otherwise agreed between the parties.
11.3 You must ensure that appropriate backup and security procedures are in place in relation to any computer facilities that you provide.
11.4 You must provide all information and materials reasonably required, and in sufficient detail, to enable Kodez to perform the Services. Kodez will not be liable for any loss or damage arising from reliance on, or from any inaccuracy or other defect in, any information or materials supplied by you.
11.5 If you cause a delay which in turn delays Kodez from providing the Services, then you agree to pay Kodez all costs, expenses and losses reasonably incurred by Kodez as a result of that delay. Kodez will not be liable for any breach of its obligations under this Agreement to the extent resulting from that delay.
11.6 You must, at all times, comply with all applicable laws (including applicable workplace health and safety, privacy and data protection and anti-fraud and corruption laws) in connection with this Agreement.
11.7 You must ensure that your personnel provide all assistance reasonably required to enable Kodez to perform the Services. You will be responsible for ensuring that your personnel have the appropriate skills and experience. If any of your personnel fail to perform as required, you must ensure that, on request by Kodez, additional or alternative personnel with appropriate skills and experience are made available
12.1 In this Agreement, IPR means all intellectual property rights, including the following rights:
(a) patents, copyright (including future copyright), rights in circuit layouts, designs, trade and service marks (including goodwill in those marks), domain names and trade names and any right to have confidential information kept confidential;
(b) any application or right to apply for registration of any of the rights referred to in paragraph (a); and
(c) all rights of a similar nature to any of the rights described in (a) and (b) that may subsist anywhere in the world (including Australia),
whether or not such rights are registered or capable of being registered.
12.2 Nothing in this Agreement operates in any way to assign or transfer to you any rights, title and interest(including any IPR) in materials (including software) created by Kodez (or a third party] prior to their use in the Services or independently of this Agreement, including any updates, upgrades, enhancements, improvements or new versions of any such materials (collectively, Background Materials).
12.3 Kodez agrees that you will retain all rights, title and interest (including all IPR) in any materials that you make available to Kodez for the purposes of performing the Services (Customer Materials). You grant to Kodez a non-exclusive license(including the right to sub-license to Kodez's subcontractors) to use, reproduce and modify the Customer Materials for the purposes of performing the Services.
12.4 Subject to clause 12.2, Kodez assigns to you all rights, title and interest (including all IPR) in any materials created by Kodez in the course of providing the Services (Agreement Materials). Kodez grants you a non-exclusive, perpetual, irrevocable, sub-licensable licence to use and otherwise exploit the Background Materials (but only to the extent incorporated into the Agreement Materials).
12.5 Notwithstanding any other provision of this Agreement and subject to the confidentiality obligations in clause 14:
(a) Kodez is free to use any information in a non-tangible form which may be retained in the unaided memory of Kodez personnel who have been in any way involved in the performance of the Services, including (without limitation) general knowledge, skills, ideas, concepts, tools, techniques, methodologies and know-how; and
(b) Kodez is not prevented in any way from developing and using any ideas, concepts, tools, techniques, methodologies and know-how relating to methods or processes of general application, including in the field of information technology and business processes.
13.1 Subject to this clause 13, Kodez indemnifies you against any and all liability, loss, damage and costs (including reasonable legal costs) that you are required to pay to a third party by way of a final court judgement or settlement approved by Kodez, arising out of or resulting from any claim by a third party that your use of the Agreement Materials or Background Materials in accordance with the provisions of this Agreement infringes that third party's IPR (an IPR Claim).
13.2 Kodez will not indemnify you under clause 13.1 unless you:
(a) notify Kodez in writing as soon as practicable of the IPR Claim having been made or brought against you
(b) give Kodez the option to conduct the defence and settlement of the IPR Claim and do not make any admissions or otherwise attempt to settle or compromise the IPR Claim except on the express instructions of Kodez;
(c) provide Kodez with reasonable assistance (at Kodez's expense) in conducting the defence or settlement of the IPR Claim; and
(d) permit Kodez to:
(i) modify or substitute the infringing part of the Agreement Materials or Background Materials (at Kodez's expense) so that it becomes non-infringing without suffering a material adverse effect on performance or functionality; or
(ii) obtain for you the right to continue to use the infringing Agreement Materials or Background Materials.
13.3 You agree that if Kodez is unable (despite applying its commercially reasonable endeavours) to remedy the IPR Claim as contemplated in clause 13.2(d), Kodez may terminate the Agreement (including any and all licences) and your final and sole remedy will be for Kodez to refund any pre-paid Charges that are affected by the termination of the Agreement(including any licences).
13.4 Kodez will not indemnify you under clause 13.1 to the extent that the IPR Claim arises from:
(a) the use of the Deliverables with other products not supplied by Kodez if such infringement would have been avoided by the use of the Deliverable without such other products;
(b) the use of the deliverables in a manner or for a purpose not reasonably contemplated or authorised by Kodez; or
(c) the unauthorized modification of any Deliverables by you (or on your behalf).
13.5 The indemnity in clause 13.1 is your sole remedy against Kodez (whether under the Agreement or otherwise) in connection with any IPR Claim.
14.1 Neither party will disclose to any third party (except to subcontractors who have a need to know and are subject to confidentiality obligations at least as onerous as those contained in this Agreement), without the prior written consent of the other party, any confidential information received from the other party for the purposes of the Agreement. Kodez's confidential information includes its methodologies and tools. This restriction does not apply to information which is or becomes generally available to the public (other than as a result of a breach of this Agreement), is independently developed by the recipient, or is required by law to be disclosed.
14.2 You agree that Kodez may publicly refer to:
(a) you as a customer of Kodez; and
(b) in generic terms, the technology implemented as part of the Services,
and may use your logo in its marketing, sales, financial material or reports and in any other way as may be agreed in writing between the parties.
15.1 You acknowledge that:
(a) personal information (as defined in the Privacy Act 1988 (Cth) (Privacy Act)) that you disclose to Kodez in connection with the Services or this Agreement may be subject to the Privacy Act; and
(b) Cardholder Data(as defined in the Payment Card Industry Data Security Standard version3.1 (PCI DSS)) that you disclose to Kodez in connection with the Services or this Agreement may be subject to the PCI DSS.
15.2 You must only disclose personal information to Kodez:
(a) to the extent (and only to the extent) required to enable Kodez to perform the Services;
(b) where you have obtained all consents and made all disclosures, required to be obtained or made under the Privacy Act in relation to such disclosure of personal information to Kodez;
(c) if such disclosure to Kodez will not otherwise breach the Privacy Act; and
(d) where the personal information contains sensitive information (as defined in the Privacy Act):
(i) you have notified Kodez in writing (prior to disclosure to Kodez) that the personal information contains sensitive information; and
(ii) Kodez has notified you in writing that it consents to receipt of that sensitive information from you.
15.3 You must only disclose Cardholder Data to Kodez:
(a) to the extent (and only to the extent) required to enable Kodez to perform the Services.
(i) where:
(a) you have notified Kodez in writing (prior to disclosure to Kodez) that you wish to disclose Cardholder Data to Kodez (and the reasons for such disclosure); and
(b) Kodez has notified you in writing that it consents to receipt of that Cardholder Data from you; and
(ii) if such disclosure to Kodez will not breach the PCIDSS or cause Kodez to contravene any law.
13.4 If the performance of the Services requires a third party to provide personal information or Cardholder Data to Kodez at your request, it is your obligation to ensure that the third party complies with this clause 15, and you indemnify Kodez against any claim, loss or expense resulting from your failure to do so or to otherwise comply with the Privacy Act or any other law.
16.1 For the duration of this Agreement and for a period of six months from the expiry or termination of this Agreement neither party will solicit or induce for employment (whether directly or indirectly through a third party), employ, contract with, or otherwise engage or retain any existing employee or contractor of the other party, without the other party's prior written consent.
16.2 Clause 16.1 does not restrict either party from employing or engaging any person who makes an unsolicited application in response to a general advertising or genuine recruitment campaign.
17.1 To the extent that you acquire goods or services from Kodez as a consumer within the meaning of Schedule 2 of the Competition and Consumer Act 2010 (Cth) (Australian Consumer Law), you may have certain rights and remedies (including, without limitation, consumer guarantee rights) that cannot be excluded, restricted or modified by agreement.
17.2 Nothing in this clause 17 operates to exclude, restrict or modify the application of any condition, warranty or provision implied by law, the exercise of any right or remedy, or the imposition of any liability under the Australian Consumer Law or any other statute, where to do so would:
(a) contravene that statute; or
(b) cause any term of this Agreement to be void,
17.3 To the extent permitted by law, Kodez's liability in respect of Non-excludable Obligations is limited to:
(a) the repair or, if necessary, the replacement of, the goods; and
(b) the supplying again of any services supplied under this Agreement.
17.4 Except in relation to Non-excludable Obligations, and to the extent permitted by law:
(a) all conditions, warranties, guarantees, rights, remedies, liabilities or other terms that may be implied or imposed by custom, under the general law or by statute are expressly excluded under this Agreement; and
(b) Kodez's liability to you arising directly or indirectly under or in any way connected with this Agreement or the performance or non-performance of this Agreement (and whether arising under any statute, in tort (for negligence or otherwise), or on any other basis in law or equity), is limited as follows:
i. Kodez excludes all liability for loss of revenue, loss of goodwill, loss of customers, loss of capital, downtime costs, loss of profit, loss of or damage to reputation, loss under or in relation to any other agreement, loss of data, loss of use of data, loss of anticipated savings or benefits, or any indirect, consequential or special loss, damage, cost or expense or other claims for consequential compensation, incurred by or awarded against you, under or in any way connected with this Agreement or the performance of the Services; and
ii. except in relation to personal injury or death, Kodez's total aggregate liability under or in any way connected with this Agreement or the performance of the Services is otherwise limited to the total amounts paid by you to Kodez under this Agreement as at the date on which the claim giving rise to such liability arose.
17.5 Kodez is not responsible or liable for any fault or failure in any system, equipment, component, software or hardware, or Kodez’s inability to perform the Services or any part of them, arising from power outages or fluctuations, outages in relation to any carrier services necessary for the proper functioning of a system, component, device or item of software of hardware, failures resulting from bugs or errors in any third-party application, system or device, or faulty products, equipment or technological infrastructure owned, operated or maintained by parties other than Kodez.
18.1 You may terminate this Agreement for convenience by providing Kodez with one month's written notice of such termination
18.2 Either party may terminate this Agreement for cause immediately by notice in writing to the other party where:
(a) the other party breaches any term of this Agreement that is not capable of remedy;
(b) the other party breaches any term of this Agreement that is capable of remedy and fails to rectify that breach within fourteen (14) days of receiving a notice from the other party requiring it to do so;
(c) the other party disposes of the whole or any part of its assets, operations or business other than in the ordinary course of business;
(d) the other party ceases to carry on business;
(e) the other party ceases to be able to pay its debts as they become due;
(f) any step is taken by a mortgagee to take possession or dispose of the whole or any part of the other party's assets, operations or business;
(g) any step is taken to enter into any arrangement between the other party and its creditors; or
(h) any step is taken to appoint a receiver, a receiver and manager, a trustee in bankruptcy, a liquidator, a provisional liquidator, an administrator or other like person of the whole or any part of the other party's assets or business.
18.3 Kodez may terminate this Agreement:
(a) for cause immediately by notice in writing to you where:
(i) any money which you must pay Kodez under this Agreement remains outstanding for more than thirty (30) days after the date on which it became payable; and
(ii) you fail to pay the outstanding money within seven (7) days of Kodez giving you notice requiring you to do so;
(b) in accordance with clause7.8.
18.4 On termination of this Agreement for any reason, you must pay the balance of the Charges that remain unpaid that relate to Services provided by, or work is undertaken by, Kodez up to the date of termination of this Agreement.
18.5 If you terminate this Agreement under clause 18.1, or if Kodez terminates this Agreement under clauses 7.8, 18.2 or 18.3, you must pay any early termination fees as specified in the Statement of Work.
18.6 Termination of this Agreement does not affect any accrued rights or remedies of either party.
The non-performance or delay in performance by a party of any obligation in this Agreement is excused during the time and to the extent that such performance is prevented by a circumstance or event beyond its reasonable control (Force Majeure Event), provided that the party affected by the Force Majeure Event uses all reasonable endeavours to perform as soon as possible its obligations under this Agreement (including by the use of reasonable workarounds and interim measures). This clause 19 does not apply to any obligation to pay money.
20.1 Any notice required or authorized to be given or served on a party under this Agreement must be in writing and delivered personally, by pre-paid registered letter or by email addressed to the contact and address contained in the Statement of Work.
20.2 Notice will be deemed given on the date of personal delivery; if posted, within the three days of mailing; and if sent by email, when the sender's system registers that the email has passed the internet gateway of the sender's system (and no delivery failure or out of office message is received by the sender within one hour of sending).
21.1 This Agreement may be altered only in writing signed by each party.
21.2 Neither party may assign any of its rights or purport to novate any of its obligations arising out of this Agreement to a third party without the other party's prior written consent.
21.3 Clauses 9, 10, 12, 13, 14, 15, 16, 17, 18, 19, 20 and this clause 21 of these Terms, and any other clause by its nature intended to survive termination of this Agreement, survives termination of this Agreement.
21.4 This Agreement may be executed in counterparts. All executed counterparts constitute one document
21.5 A provision or part of a provision of this Agreement that is illegal or unenforceable may be severed from this Agreement and the remaining provisions or parts of the provisions of this Agreement continue in force.
21.6 A waiver of a right, power or remedy must be in writing and signed by the party giving the waiver.
21.7 Except where this Agreement expressly states otherwise, it does not create a relationship of employment, trust, agency or partnership between the parties.
21.8 This agreement is governed by the laws of Victoria, Australia, and each party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts of Victoria, Australia.
21.9 This Agreement is not invalid because the formation of the Agreement took place wholly or partly by means of one or more electronic communications.
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