Support & Professional Services Agreement
The terms and conditions contained in this Support & Professional Services Agreement apply when you (Client) ask us (Provider) to perform Services outside of the scope of standard support of the Oncord Application which is licenced to you subject to the terms of the End User License and Hosting Agreement.
If you have been sent a separate electronic Support and Professional Services Agreement, then the terms and conditions contained in that agreement apply to the Services provided by the Provider.
1. Definitions and Interpretation
1.1 Definitions
In this Agreement, unless the context or subject matter otherwise require:
Agreement means the terms and conditions contained in this document.
Business Day means:
(a) for receiving a notice under clause 8.10, 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, or public holiday in Queensland, Australia.
Business Hours means from 8.30am to 5.00pm on a Business Day.
Confidential Information means:
(c) all information, know-how and Intellectual Property in relation to the Services; and
(d) all other information treated by the Provider as confidential,
(e) regardless of its form and whether the person receiving the information becomes aware of it before or after the date of this Agreement.
Commencement Date means the date that the Client accepted the terms and conditions contained in this Agreement by communicating their acceptance to the Provider or the date that the Client continued to issue the Provider with instructions after having these terms and conditions brought to their attention.
Delivery Date means the date specified in Schedule 1 (if any).
Damages means liabilities, expenses, losses, damages and costs (including legal costs on a full indemnity basis and consequential and indirect losses and damages including those arising out of any third party claim.
Force Majeure Event means, in relation to a party, anything outside the reasonable control of the party, including:
(a) any act or omission of a third person (except for an act or omission of the party's Officers);
(b) fire, flood, earthquake, elements of nature or act of God; or
(c) riot, civil disorder, rebellion or revolution.
Intellectual Property Rights means all intellectual property rights, including:
(a) patents, copyright, database rights, registered designs, trademarks, logos, slogans (in each case, whether registrable or non-registrable); and
(b) any application or right to apply for registration of any of the rights referred to in paragraph (i).
Materials means anything delivered to the Client by the Provider in conjunction with the performance of the Services.
Officer in relation to a Party means any of its officers, employees, contractors and agents of the party and any related body corporate of it.
Parties means the Provider and the Client.
Services means the services set out in Schedule 1, and any additional or related services, performed by the Provider under this Agreement.
Service Level means the level of service provided in Schedule 1.
Service Charges means the charges for the Services as specified in Schedule 1.
Oncord Application means the Oncord website management system which is licensed to the Client on the terms and conditions contained in the End User License and Hosting Agreement;
Goods and Services Tax (GST) means any consumption tax imposed by government, whether at point of sale or at some other specified occurrence, by whatever name, which operates during the term or any renewal and includes (without limitation) a goods and services tax, a broad-based consumption or indirect tax and value-added tax. This Agreement is to be treated as taxable for the purpose of GST and each amount payable to the Provider under this Agreement is expressed inclusive of GST.
Term means the period of time stated in Schedule 1 that applies to the Services of the Provider.
1.2 Interpretation
In the interpretation of this Agreement, unless the context or subject matter otherwise require:
(a) singular includes plural and vice versa;
(b) any gender includes every gender;
(c) a reference to a person includes corporations, trusts, associations, partnerships, a government authority, and other legal entities, and where necessary, include successor bodies;
(d) references to writing include printing, typing, facsimile and other means of representing or reproducing words, figures, drawings or symbols in a visible and tangible form, in English;
(e) references to signature and signing include due execution of a document by a corporation or other relevant entity;
(f) a reference to time is to Queensland, Australia time;
(g) references to months mean calendar months;
(h) references to statutes include statutes amending, consolidating or replacing the statutes referred to and all regulations, orders-in-council, rules, by-laws and ordinances made under those statutes;
(i) references to sections of statutes or terms defined in statutes refer to corresponding sections or defined terms in amended, consolidated or replacement statutes;
(j) a reference to $A, dollar or $ is to the currency of the Australia;
(k) headings and the table of contents are used for convenience only and are to be disregarded in the interpretation of this Agreement;
(l) where any word or phrase is given a defined meaning, another grammatical form of that word or phrase has a corresponding meaning;
m) each paragraph or sub-paragraph in a list is to be read independently from the others in the list;
(n) a reference to an Agreement or document is to that Agreement or document as amended, novated, supplemented or replaced from time to time;
(o) a reference to a clause is a reference to a clause in this Agreement; and
(p) a reference to a party includes that party's executors, administrators, substitutes, successors and permitted assigns.
2. Provision of Services
2.1 Provider to provide Services
The Provider must provide the Services to the Client in accordance with:
(a) the Service Level set out in Schedule 1; and
(b) in accordance with the terms and conditions contained in this Agreement.
2.2 Delay or failure in performing Client's obligations
Any delay or failure by the Client in performing its obligations under this Agreement may result in delay or failure by the Provider to provide the Services.
2.3 Consequences of delay or failure in performing Client's obligations
If there is a delay or failure by the Client in performing its obligations under this Agreement:
(a) the Provider is not responsible for any delay or failure to provide the Services as consequence; and
(b) the Client must pay any additional cost calculated on the hourly rates provided in Schedule 1, incurred by the Provider because of any delay or failure by the Client in performing those obligations.
2.4 Postponement of Delivery Dates
If the Provider has agreed to a Delivery Date as specified in Schedule 1, and cannot meet the Delivery Date, directly or indirectly, because of a delay or failure by the Client in performing its obligations under this Agreement, any agreed relevant Delivery Date for providing the Services are put back by the number of Business Days caused by the Client's failure or delay.
2.5 Deemed acceptance of Services
Services are deemed to have been accepted by the Client if:
(a) the Provider does not receive notice from the Client within two (2) Business Days of being notified that the Services had been completed by the Provider; or
(b) the Materials that are the subject of the Services are used without objection by the Client.
3. Payment for Services
3.1 Invoices
On or around the end of each month (unless otherwise specified in Schedule 1), the Provider must give the Client a tax invoice for Service Charges and any additional charges for the month.
3.2 Payment
(a) The Client may nominate to pay by direct deposit or by credit card.
(b) The Client authorises the Provider to charge its nominated account for all accrued Service Charges associated with the Providers provision of the Services.
(c) Credit card payments will be charged automatically, and the Provider may charge the amount due to the nominated credit card at any time within three (3) working days of the end of the calendar month.
(d) The Provider may at its sole discretion, elect to charge the Clients credit card more than once each month if the value of work performed is in excess of $1000.00.
3.3 Withholding Services
If the Provider is not able to charge the Clients nominated credit card for the Service Charges that are due payable under this Agreement more than seven (7) days after they become due and payable, the Provider may immediately stop providing Services until the Client pays all outstanding amounts.
3.4 Quotations
(a) The Provider may provide the Client with a quote prior to the Commencement date;
(b) The final cost may vary substantially from the quotes due to any of the following variables:
i) the requirements may be more complex than initially thought;
ii) alternative courses of action may be pursued, therefore increasing the time taken to perform the Services;
iii) the extent to which you assist by providing full and adequate instructions during the performance of the Services by the Provider; and
iv) that your instructions change substantially.
(c) The Client acknowledges that:
i) any quotation provided by the Provider is merely an estimate and that the Provider is not bound to the specified price;
ii) the Provider will charge the Client at the hourly rates specified in Schedule 1.
4. Intellectual Property Rights
4.1 Ownership
The Provider owns any Intellectual Property Rights in the Materials and the Services developed for the Client under this Agreement.
4.2 Licence
The Provider grants the Client a non-exclusive, non-transferable licence to use the Materials in accordance with clause 4.4.
4.3 No transfer
This Agreement does not transfer any Intellectual Property Rights in the Materials, and the methodologies developed under it, to the Client and the Client must not represent that it owns those rights.
4.4 Conditions of licence
The Client must:
(a) only use the Materials for its internal business purposes and in accordance with this Agreement;
(b) sign any form or document reasonably required by the Provider so that the Provider can licence the Materials; and
(c) comply with the Provider's reasonable directions of the Provider regarding use of the Materials;
(d) if using the Oncord application, then it must have a current license to do so.
5. Indemnity
5.1 Indemnity
The Client indemnifies the Provider and its Officers against any Damages they sustain or incur (directly or indirectly) because of:
(a) a breach of any of the terms of this Agreement by the Client; or
(b) any negligent, unlawful or wilful act or omission of the Client or its Officers in connection with this Agreement and the provision of the Services.
5.2 Exception
The indemnity in clause 5.1 does not apply to the extent that the damages result from a negligent act or omission of the Provider or its Officers.
6. Limitation of liability
6.1 Provider excludes implied conditions and warranties
The Provider:
(a) excludes any condition or warranty implied into this Agreement as far that it is allowed to do so at law; and
(b) limits its liability for breach of any implied condition or warranty that it cannot exclude to the greater of (at the Provider 's option):
i) for goods, repairing or replacing those goods or the cost of paying to having those goods repaired or replaced; or
ii) for services, resupplying the services or paying the cost of having those services resupplied.
6.2 Limitation of liability amount
If the Client makes a claim against the Provider for any act or omission of the Provider relating to this Agreement (whether the claim is based in contract, tort (including negligence) or statute) the Provider 's liability in respect of that claim is:
(a) limited to $1000 for loss of, or damage to, tangible property; and
(b) for any other claim, limited in aggregate to:
i) if the liability arises during the first twelve (12) months of this Agreement, the total of Service Charges actually paid for those Services that gave rise to the loss or damage as at the date the liability arose; or
ii) if the liability arises after the first twelve (12) months of this Agreement, the total Service Charges paid over the preceding twelve (12) months for those particular Services that gave to the loss or damage as at the date the liability arose.
6.3 No liability for special or consequential losses
The Provider excludes liability to the Client for any special or consequential loss including loss of opportunity, lost revenue and lost profits and loss of data associated with the performance of services by the Client.
7. Termination
7.1 Termination by the Provider
(a) The Provider, acting reasonably may terminate this Agreement if:
i) the Client fails to provide necessary information in order for the Provider to complete the Services; or
ii) the Client's credit card fails after two (2) attempts pursuant to clause 3.2(b); or
iii) it provides the Client with seven (7) days notice in writing of its intent to terminate this Agreement; or
iv) it provides notice of a change in its hourly rates, in which case this Agreement terminates and the Client must accept the revised terms and conditions;
v) the Client involves another party to perform Services.
7.2 Termination by the Client
The Client, acting reasonably may terminate this Agreement:
(a) by providing seven (7) days notice in writing; and
(b) paying all outstanding amounts associated with this Services performed by the Provider up to and including the date of termination.
8. Miscellaneous provisions
8.1 Alterations
This Agreement may only be altered in writing signed by all the Parties.
8.2 Assignment
The Provider may this Agreement or a right under this Agreement to whoever it so chooses at any time. The Client agrees not to assign this Agreement or any of its rights and obligations without the prior written consent of the Provider.
8.3 Consents and approvals
Except where this Agreement expressly states otherwise, a Party may, in its discretion, give conditionally or unconditionally or withhold any approval or consent under this Agreement.
8.4 Entire Agreement
This Agreement constitutes the entire Agreement between the Parties in connection with its subject matter and supersedes all previous Agreements or understandings between the in connection with its subject matter.
8.5 Force Majeure
(a) The Provider is not liable for any delay or failure to perform its obligations if such failure or delay is due to Force Majeure.
(b) The Provider must notify the Client as soon as practical be of any anticipated delay due to Force Majeure. The performance of the Provider’s obligations under this Agreement will be suspended for the period of the delay due to Force Majeure.
(c) If a delay due to force majeure exceeds 30 days, the Client may terminate this Agreement immediately on providing notice to the Provider. If the Client gives such notice to the Provider:
i) the Provider will refund moneys previously paid by the Client under this Agreement for which no services have been provided; and
ii) the Client will pay the Provider a reasonable sum in relation to services rendered or costs and expenses incurred prior to termination for which no payment has been made by the Client.
8.6 Further action
Each party must do, at its own expense, everything reasonably necessary (including executing further documents) to give full effect to this Agreement and transactions contemplated by it.
8.7 Governing law and jurisdiction
This Agreement is be governed by and interpreted in accordance with the laws of Queensland. The Parties submit to the non-exclusive jurisdiction of the Courts of Queensland.
8.8 Notices
All notices to be served must be served in writing and signed by a duly authorised person. Notices may be served by:
(a) prepaid post to the address last provided to the other Party. The notice is deemed to have been received when it would be received in the ordinary course of the post;
(b) personally serving the notice at the address last notified;
(c) transmitting the notice to the last notified facsimile number. The notice shall be deemed to have been received if the transmission slip records that it was transmitted to that number; or
(d) sending it by email to the email address last specified.
Any notice to be served on either party can be served at the relevant address as stated in the details section of this Agreement.
8.9 Severability
Part or all of a provision of this Agreement that is illegal or unenforceable may be severed from this Agreement and the remaining parts of the provision or provisions of this Agreement continue in force.
8.10 Survival
Any obligation of Confidentiality and indemnity created by this Agreement is independent and survives termination of this Agreement.
8.11 Waiver
The non-exercise of or delay in exercising a right of a party shall not operate as a waiver of that right, nor does a single exercise of a right preclude another exercise of it or the exercise of other rights. A right may only be waived by notice, signed by the party (or its authorised representative) to be bound by the waiver.
9. Items Schedule
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Term: |
5 years |
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Services: |
Unless specified, the Provider may provide services as instructed that may (or may not) as the case may be, involve any or all of the following: |
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Delivery Date: |
To be advised (if applicable) |
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Service Charges: |
The Provider will charge the Client on the basis of time spent by its Officers to complete the Services:
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Special conditions: |
To be advised. |
