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TERMS AND CONDITIONS

General Terms

 

Continuing Obligations: Warranties, Insurance and Intellectual Property Rights continue after termination or completion of the Contract.

Severability: The whole or any part of any clause of the Contract that is illegal or unenforceable will be severed and will not affect the continued operation of the remaining provisions of the Contract.

Waiver: The failure of a party at any time to insist on performance of any obligation under the Contract by another party is not a waiver of its right

  1. to insist on performance of that obligation or to claim damages unless that party acknowledges in writing that the failure is a waiver; and

  2. at any other time to insist on performance of that or any other obligation under the Contract.

Governing Law and Jurisdiction: The Contract is governed by the laws applicable in Queensland and each party submits to the jurisdiction of the courts of that State.

Entire Agreement: Except as set out in the preamble, this Contract constitutes the entire agreement between the parties and, in relation to its subject matter, supersedes all previous agreements, arrangements and representations between the parties. No confirmation, shipment or delivery docket, invoice or other such document issued by or on behalf of the Supplier in relation to the Goods or Services will vary this Contract.

Agreement Term

This  Agreement  commences  on  the  Commencement  Date  and  will  continue  until  the parties have completed the performance of their obligations under this Agreement, unless terminated earlier in accordance with this Agreement.

Supply of Hardware Products

  1. invise will supply the Customer with the Hardware Products specified in the Proposal in accordance with this Agreement and any Implementation Plan and Requirements Definition.

  2. invise will  also  make  the  Documentation  supplied  by  the  manufacturer  of  the Hardware Products available to the Customer.

  3. The manufacturers of the Hardware Products will retain all Intellectual Property Rights in the Documentation supplied with the Hardware Products.

  4. invise may substitute or modify any component of the Hardware Products or part of any component of the Hardware Products prior to delivery without consultation with the  Customer  if,  in invise's  reasonable  opinion,  the  substitution  or  modification  will not materially reduce the functionality or performance of the Hardware Products.

Delivery of Hardware Products

  1. invise will  use  reasonable  endeavors  to  deliver  the  Hardware  Products  to  the Customer at the Site by the applicable Delivery Date.

  2. If the Customer requires a Hardware Product to be delivered to a location other than the  Site  or  the  Customer  requests  delivery  of  a  Hardware  Product  to  be  made  in advance  of  its  Delivery  Date  or  postponed  beyond  its  Delivery  Date,  the  Customer must make its request in writing to invise no later than 10 Business Days (or such other period  as  is  agreed)  prior  to  the  Delivery  Date. invise may  in  its  sole  discretion determine whether to agree to such a request and what conditions will apply in the event of agreeing to such a request, including any additional charges applicable.

  3. The Customer must ensure it is ready to receive delivery of the Hardware Products at the Site on the Delivery Date. The Customer is responsible for ensuring that the correct quantity  and  specification  of  the Hardware  Products  has  been  delivered  and  for ensuring  that  the  Hardware  Products  are  in  an  acceptable  condition  in  accordance with any Requirements Definition. If the Customer considers that there is a deficiency in the number, specification or condition of the Hardware Products delivered it must notify invise in  writing  within  48  hours  of  the  delivery  and  retain  such  related packaging and documentation as is required to comply with the return conditions of the manufacturer of the Hardware Products. invise will not accept any claim for any deficiency  in  the  number,  specification  or  condition  of  the  Hardware  Products delivered which is submitted more than 48 hours after delivery.

  4. invise is not responsible for unpacking the Hardware Products, disposing of packaging material  or  installing  the  Hardware  Products  unless  specifically  required  under  the Proposal.

Defects

  1. invise  does  not  represent  or  warrant  that  the  Hardware  Product  will  be  free  from Defects.

  2. if the Hardware Product has a Defect, the Customer's entitlement to any warranty will be as set out by the manufacturer of the Hardware Product in the Documentation. The Customer, and not invise, will be responsible for requesting service in relation to the Defect.

Risk and Title

  1. Risk  in  the  Hardware  Products  passes  to  the  Customer  (including  for  insurance purposes) when the Hardware Products are collected by the Customer from invise or are delivered to the Customer by invise (as applicable).

  2. Notwithstanding delivery and passing of risk, the property in the Hardware Products supplied by invise under  a Proposal  shall  remain  with invise until  the  Customer has paid all monies owed by it to invise under the    Proposal.

  3. If the Proposal provides that any Hardware Products are to be consigned, rented or leased to a Customer, those Hardware Products are and shall remain the property of invise. As such:

  • the Customer shall not lend or give the Hardware Products to any person;

  • the  Customer  shall  not  remove  the  Hardware  Products  from  the  specified  area agreed under the Proposal without the written consent of invise;

  • for the avoidance of doubt, this clause applies to any Hardware Products that are consigned, rented or leased to a Customer; and

  • the property in the Hardware Products shall remain with invise for so long as the Hardware Products are consigned, rented or leased to the Customer.

Personal Property Securities Act 2009 (Cth)

  1. A term used in this clause has the same meaning as in the PPSA.

  2. For  so  long  as  any  of  the  monies  owing  by  the  Customer  to invise under  this Agreement  remain unpaid, or  for  so  long  as  the  Hardware  Products are consigned, rented or leased, the Customer acknowledges that by virtue of this Agreement, invise has a Security Interest in the Hardware Products and their Proceeds under the PPSA, which gives rise to remedies of repossession of the Hardware Products in accordance with the PPSA or otherwise where invise seeks to enforce their Security Interest and this Agreement constitute a Security Agreement that covers the Hardware Products for the purposes of the PPSA.

  3. The Customer agrees to keep the Hardware Products separate from other goods and maintain  the  labelling  and  packaging  of invise so  that  the  Hardware  Products  are readily identifiable as the property of invise.

  4. The  Customer  will,  at invise's request,  do  anything  (including  obtaining  consents, giving notices or directions to any person, making amendments to this Agreement or a Security Agreement or executing a new document) for the purpose of:

  • ensuring that any Security Interest granted by the Customer to invise attaches to the  collateral  that  is  intended  to  be  covered  by  that  Security  Interest,  is enforceable,  perfected  and  otherwise  effective,  and  has  the  priority  required  by invise;

  • enabling invise to prepare and register a financing statement or financing change statement; or

  • for the avoidance of doubt, this clause applies to any Hardware Products that are consigned, rented or leased to a Customer; and

  • enabling invise to exercise any of its rights or powers in connection with any such Security Interest.

  • The Customer will promptly provide any information requested by invise in connection with  any  Security  Interest  granted  by  the  Customer  to invise to  enable invise to exercise any of its rights or powers or perform any of its obligations under the PPSA.

  • The Customer waives its right to receive any notices (including notice of a verification statement) required to be given under the PPSA unless that requirement cannot be excluded.

  • Except if section 275(7) of the PPSA applies, each of invise and the Customer agree not to disclose any information of the kind referred to in section 275(1) of the PPSA that is not publicly available.

  • Despite anything contained in this Agreement, inviseis not required to disclose any information of the kind referred to in section 275(1) of the PPSA.

  • Anything that the Customer is required by invise to do under this clause must be done by the Customer at its own expense. The Customer agrees to reimburse on demand invise's costs (including all legal and other professional costs on a full indemnity basis) in connection with any action taken by invise under or in connection with this clause.

HARDWARE INSTALLATION SERVICE

This only applies if invise is required by the Proposal to supply the Customer with Hardware Installation Services.

Supply of Hardware Installation Service

  1. invise will perform the Hardware Installation Services in accordance with the terms of this Agreement and any Implementation Plan.

  2. invise will endeavor to perform the Hardware Installation Services for the Customer in accordance with any applicable Milestone Dates set out in any Project Management Plan or Implementation Plan.

Scope of invise's obligations

  1. Unless expressly required under the Proposal, the obligations of invise when providing the  Hardware  Installation  Service  are  confined  to  installing  the  Hardware  Product which is specified in the Proposal by rendering the Hardware Product ready for the Customer’s  use  by  following  the  installation  steps,  if  any,  prescribed  by  the Documentation  supplied  with  the  Hardware  Product  by  its  manufacturer.  Unless otherwise  expressly  required  by  the  Proposal, invise is  not  required  to  connect  the installed Hardware Products to any part of the Customer’s computer system, migrate any Customer data or install any Customer provided software (whether provided by invise or not) on to the Hardware Products.

  2. If the particular Hardware Installation Service specified in the Proposal requires invise to  connect any Hardware Product to the Customer’s computer system, migrate any Customer data or install any Customer provided software then:

  • the obligation of invise to connect the Hardware Products will be conditional on all  parts  of  the  Customer's  computer  system  (including  software)  being  in accordance with  the  specifications contained  in  the Proposal  or  Implementation Plan and otherwise having been properly installed and maintained, being in correct operational  order  (with  appropriate  software  updates  installed), free  of  defects, free of data corruption and errors and free of Harmful Codes. In no circumstances will invisebe  responsible  for  correcting  any  deficiencies  or  defects  in  the Customer’s computer system;

  • the  obligations  of invise will not extend to  developing any  software  or  software interfaces that may be necessary;

  • the Customer must ensure that its computer system, any relevant data and the Site are available in order to facilitate the provision of the Hardware Installation Service; 

  • the Customer must provide invise with the required software installation disks (or other media), the operational, installation and technical documentation relating to the  various  hardware  and  software  components  of  the  Customer’s  computer system  and  administrator  logins  and  passwords  necessary  to  enable invise to provide the Hardware Installation Service;

  • the Customer will ensure that its data is backed-up and secure at all times before commencement of the Hardware Installation Service. invise is not responsible for backing up any Customer data;

  • invise will not be responsible for cleansing any transferred data or for correcting any formatting errors, data errors or data corruption which is caused by or arises from the data provided to invise for transfer;                and

  • at  the  completion  of  the  Hardware  Installation  Service  the  Customer  will  be solely  responsible  for  ensuring  that  all  transferred  data  has  been  correctly transferred without error, corruption or omission and that all Customer supplied software which has been installed on the Hardware Products is operating correctly.

Site preparation

Unless otherwise expressly specified by the Proposal, the Customer is solely responsible for making  the  Site  ready  for  the  installation  of  the  Hardware  Products.  Without  limiting  this clause the Customer agrees that it is responsible for:

  1. providing a suitable space at the Site for the installation of the Hardware Products;

  2. providing  appropriate  storage  racks  (where  required)  for  the  installation  of  the Hardware Products;

  3. providing   the   required   telecommunications   links   and   broadband   services   for connection to the Hardware Products;

  4. providing  environmental  cooling  equipment  and  cooling  for  the  area  where  each Hardware  Product  will  be  installed  in  accordance  with  the  requirements  of  the Documentation supplied with the Hardware Product by the manufacturer; and

  5. electrical  power  circuits  and  power  as  required  to  operate  the  relevant  Hardware Product in accordance with the requirements of the Documentation supplied with the Hardware Product by the manufacturer.

Exclusions from the Hardware Installation Service

Unless expressly specified to the contrary in the Proposal, the Hardware Installation Services do not include the following (or services relating to any of the following):

  1. rectification of defects, errors or computer viruses (except for computer viruses that were introduced by invise) in any software, hardware or equipment, or repairs, support or maintenance relating to those things;

  2. backup, preservation, translation, migration or management of data;

  3. rectification   of  faults   in   hardware,   equipment   or   telecommunications   links   or telecommunications services;

  4. development  of  any  software  or  software  interfaces  needed  to  complete  the installation;

  5. supply and installation of consumables or hardware;

  6. rectification of errors or failures caused by failure of hardware, power, air-conditioning or other environmental failure; or

  7. installing,  transferring,  moving  or  removing  software,  data,  hardware  or  other equipment or materials.

Defect

  1. invise does  not  represent  or  warrant  that  the  Hardware  Installation  Services  will  befree from Defects

  2. 1.1(f),if  the  Hardware  Installation  Services  has  a  Defect  and  the  Customer  notifies invise of  this  Defect  during  the  Warranty  Period,  then  the  Customer's  sole  and exclusive remedy for that Defect is that invise will use its reasonable efforts, without any  guaranteed  service levels,  and  at  no  cost  to  the  Customer rectify  the  Defect or correct or re-perform the Hardware Installation Services

  3. if the Hardware Product has a Defect, then invise's sole responsibility will be to request that the manufacturer of the Hardware Product rectify the Defect or repair or replace the Hardware Product. This clause only applies if invise is required under the Proposal to supply the Customer with Hardware Installation Services for the relevant Hardware Product.

  4. invise will have no responsibility to assist the Customer in respect of a Defect where:

  • the  Customer  has  not  used  the  Hardware  Product  in  accordance  with  its Documentation and its intended purpose;

  • the  Hardware  Product  has  been  used  on  or  in  conjunction  with  equipment  or software not approved by invise;

  • the Hardware Product has been modified by someone other than invise;

  • the Defect is caused by items not supplied by invise or any error or defect in the Customer's computer system or physical environment;

  • the Defect is due to a Force Majeure Event; or

  • the Customer is in breach of this Agreement.

​

SUPPLY OF LICENSED SOFTWARE LICENCE AND LICENSED SOFTWARE SUPPORT PLANS

This only applies if invise is required by the Proposal to supply the Customer with a Licensed Software License or a Licensed Software Support Plan.

Supply of licensed software licence

  1. invise will  make  the  Licensed  Software  specified  in  the  Proposal  available  to  the Customer in accordance   with this Agreement in accordance with this Agreement and any Implementation Plan and Requirements Definition.

  2. invise will  also  make  the  Documentation  (where  provided  by  the  licence or  of  that Licensed Software) available to the Customer.

  3. invise will use reasonable endeavors to make the Licensed Software available to the Customer by the applicable Delivery Date.

  4. invise will have no responsibility to assist the Customer in respect of a Defect where:

  5. The Customer acknowledges that invise is a reseller of the Licensed Software Licence, not  a  licensor.  The  Licensed  Software  is  licensed  to the  Customer  directly  by  the relevant  licensor  of  that  Licensed  Software  according  to  the  terms  of  the  Licensed Software Licence.

  6. invise does  not  represent  or  warrant  that  the  Licensed  Software  will  be  free  from Defects. If  the  Licensed  Software  has  a  Defect,  the  Customer's  entitlement  to  any warranty will be as  set out by  the  licensor  of  the  Licensed Software  in  the Licensed Software  Licence.  The  Customer,  and  not invise,  will  be  responsible  for  requesting service in relation to the Defect.

  7. invise is not liable to the Customer for the performance of the Licensed Software. The Customer’s rights and obligations in respect of the Licensed Software are as set out in the Licensed Software Licence.

  8. invise is not responsible for installing the Licensed Software unless the Customer has agreed to purchase the Software Installation Service for that Licensed Software.

Supply of Licensed Software Support Plans

invise will  provide  the  Customer  with  the  Licensed  Software  Support  Plan.  The  Customer acknowledges that invise is a reseller of the Licensed Software Support Plan, The support for the Licensed Software is provided by the relevant supplier specified in the Licensed Software Support Plan according to the terms of that plan. invise is not liable to the Customer for the support services described in the Licensed Software Support Plan. The Customer’s rights and obligations to the support services in respect of the Licensed Software are as set out in the Licensed Software Support Plan.

Supply of Software Installation Service

This only applies if invise is required by the Proposal to supply the Customer with a Software Installation Service.

Supply of Software Installation Service

​

  1. invise will perform the Software Installation Service in accordance with the terms of this Agreement and any Implementation Plan.

  2. invise will endeavor to provide the Software Installation Services to the Customer in accordance with any applicable Milestone Dates set out in any Project Management Plan or Implementation Plan.

Data back up

The  Customer  will  ensure  that  its  data  is  backed-up  and  secure  at  all  times  before commencement of the Software Installation Service. invise is not responsible for backing up any Customer data.

Supply of Software Installation Service

Scope of invise's obligations

​

  1. Unless expressly required under the Proposal, the obligations of invise when providing the  Software  Installation  Service  are  confined  to  installing  the  relevant  Software specified in the Proposal by rendering the Software ready for the Customer’s use by following the installation steps, if any, prescribed by the Documentation supplied with the  Software.  Unless  otherwise  expressly  required  under  the  Proposal invise is  not required  to  integrate  the  installed  Software  with  any  other  software  or  parts  of  the Customer’s computer system, migrate any Customer data or install any Customer provided software.

  2. Unless expressly required under the Proposal, the obligations of invise when providing the  Software  Installation  Service  are  confined  to  installing  the  relevant  Software specified in the Proposal by rendering the Software ready for the Customer’s use by following the installation steps, if any, prescribed by the Documentation supplied with the  Software.  Unless  otherwise  expressly  required  under  the  Proposal invise is  not required  to  integrate  the  installed  Software  with  any  other  software  or  parts  of  the Customer’s computer system, migrate any Customer data or install any Customer provided software.​

  • the  obligations  of invise will be conditional  on all  parts of  the computer  system (including software)  being in accordance with the specifications (if any) contained in  the  Proposal  and  otherwise  having  been  properly  installed  and  maintained, being  in  correct  operational  order  (with  all  software  updates  installed),  free  of defects,  free  of  data  corruption  and  errors  and  free  of  Harmful  Codes.  In  no circumstances will invise be responsible for correcting any deficiencies or defects in the Customer’s computer system;

  • the  obligations  of invise will not extend to  developing any  software  or  software interfaces that may be necessary to complete the Software Installation Service;

  • the Customer must ensure that its computer system, any relevant data and the Site are ready and available to invise in order to facilitate the provision of the Software Installation Service by invise;

  • the Customer must provide invise with the required software installation disks (or other media), the operational, installation and technical documentation relating to the  various  hardware  and  software  components  of  the  Customer’s  computer system  and  administrator  logins  and  passwords  necessary  to  enable invise to undertake its responsibilities;

  • invise will not be responsible for cleansing any transferred data or for correcting any formatting errors, data errors or data corruption which is caused by or arises from the data provided to invise for transfer; and

  • at the completion of the Software Installation Service the Customer will be solely responsible  for  ensuring  that  all  transferred  data  has  been  correctly  transferred without error, corruption or omission.

Exclusions from the Software Installation Service

Unless expressly specified to the contrary in the Proposal, the Software Installation Service does not include the following (or services relating to any of the following):

  1. rectification of defects, errors or computer viruses (except for computer viruses that were introduced by invise ) in any software, hardware or equipment, or repairs, support or maintenance relating to those things

  2. backup, preservation, translation, migration or management of data;

  3. rectification   of  faults   in   hardware,   equipment   or   telecommunications   links   or telecommunications services;

  4. development  of  any  software  or  software  interfaces  needed  to  complete  the installation;

  5. supply and installation of consumables or hardware;

  6. rectification of errors or failures caused by failure of hardware, power, air-conditioning or other environmental failure;

  7. installing,  transferring,  moving  or  removing  software  (other  than  the  specified Software), data, hardware or other equipment or materials.

Defect

Scope of invise's obligations

​

  1. invise does not represent or warrant that the Software Installation Services will be free from Defects.

  2. if the Software Installation Services has a Defect and the Customer notifies invise of this Defect during the Warranty Period, then the Customer's sole and exclusive remedy for  that  Defect  is  that invise will  use  its  reasonable  efforts,  without  any  guaranteed service  levels,  and  at  no  cost  to  the  Customer  rectify  the  Defect  or  correct  or  re-perform the Software Installation Services

  3. if the Licensed Software has a Defect, then invise's sole responsibility for that Defect is to request that the licensor of the Licensed Software rectify the Defect or repair or replace the Licensed Software. This clause only applies if invise is required under the Proposal to supply the Customer with Software Installation Services for the Licensed Software

  4. invise will have no responsibility to assist the Customer in respect of a Defect under this clause  where:

  • the  Customer  has not  used  the  Software  in  accordance  with  its  Documentation and its intended purpose;

  • the Software has been used on or in conjunction with equipment or software not approved by invise

  • the Software has been modified by someone other than invise;

  • the Defect is caused by items not supplied by invise or any error or defect in the Customer's computer system or physical environment;

  • the Defect is due to a Force Majeure Event; or

  • the Customer is in breach of this Agreement.

CONSULTANCY SERVICES

This clause only applies if invise is required by the Proposal to supply the Customer with any Consultancy Services.

  1. invise will provide the Customer with the Consultancy Services in accordance with the terms of this Agreement.

  2. invise will  endeavor  to  provide  the  Consultancy  Services  to  the  Customer  in accordance with any applicable Milestone Dates set out in any Project Management Plan or in the absence of a Project Management Plan, within the time frame specified in the Proposal

Defect

  1. invise does not represent or warrant that the Consultancy Services will be free from Defects.

  2. If the Consultancy Services has a Defect andthe Customer notifies inviseof this Defect during the Warranty Period, then the Customer's sole and exclusive remedy for that Defect  is  that invise will  use  its  reasonable  efforts,  without  any  guaranteed  service levels, and at no cost to the Customer rectify the Defect or correct or re-perform the Consultancy Services.

  3. invise will have no responsibility to assist the Customer in respect of a Defect where:

  • the Defect is caused by items not supplied by invise or any error or defect in the Customer's computer system or physical environment;

  • the Defect is due to a Force Majeure Event; or

  • the Customer is in breach of this Agreement.

GENERAL OBLIGATIONS

invise obligations

The Services will be provided with due care and skill and in accordance with all applicable laws and regulations.

  1. provide invise with access to the information, equipment, facilities and the Site that invise reasonably requires to perform the Services, including reasonable and necessary on-line access, electrical power, telephone services and working space as invise may reasonably request;

  2. provide  sufficient,  qualified  Personnel  capable  of  performing  all  of  its  duties  and obligations under the Proposal and this Agreement and will provide reasonable access to its relevant Personnel.

FEES, PAYMENTS AND INVOICES

Fees

The Customer must pay invise the Fees in accordance with this Agreement and the Proposal.

Out of Scope services

Where invise provides the Customer with services that are outside the scope of the Services required  by  the  Proposal,  then  unless  agreed  otherwise,  the  Customer  must  pay invise's standard hourly rates for providing that service.

Expenses

  1. In  addition  to  the  Fees,  the  Customer  must  pay invise or  reimburse invise for  any expenses  which  the  Customer  is  required  to  pay  or  incur  under  the  Proposal  or otherwise under this Agreement in order for invise to perform this Agreement.

  2. Unless  specified  otherwise, invise will  charge  an  administration  fee  of  5%  on  the expenses.

Invoice and payment

  1. Subject to the Proposal, invise will invoice the Customer for the Fees on a fortnightly basis and will provide the Customer with a valid tax invoice.

  2. The Customer must pay the amount invoiced within 10 Business Days of the date of invoice.

Disputed invoices

If the Customer wishes to dispute an invoice it must:

  1. pay all parts of the invoice which are not the subject of a bona fide dispute; and

  2. give invise notice  of  the  dispute  and  the  reasons  why  the  Customer  disputes  the invoice

before the due date for payment of the invoice.

Default in payment

If the Customer fails to pay any amount payable under this Agreement by the due date then, except where the amount has been validly disputed pursuant to clause, invise may (without prejudice to any other remedies to which it is entitled):

  1. charge the Customer interest (calculated on a daily basis) on any unpaid amounts at a rate of 10% per annum for the duration that the amount is unpaid; and

  2. suspend  performance  of invise's  obligations  under  this  Agreement  without  any liability to the Customer.

Fees variations

  1. The Fees are subject to variation.

  2. If any Hardware Products, Software or Services are provided over a period greater than 12 months, the Fees in the Proposal will be subject to annual adjustment on the first anniversary   of   the   Commencement   Date,   and   on   each   anniversary   of   the Commencement Date after that.

  3. Any increase in the Fees will be calculated in accordance with the greater of:

  • the change in the CPI between the relevant anniversary date and the date on which the Fees were last set or varied; or

  • 5%.

TAXES

General

  1. Unless expressly stated otherwise, all amounts payable are exclusive of any Taxes.

  2. the Customer must pay all Taxes in connection with this Agreement.

  3. If the law requires the Customer to make a deduction or withholding for or on account of Taxes from a payment, the Customer must pay invise an additional amount so that invise receives an amount equal to the payment which would have been paid had no deduction or withholding been made.

GST

  1. A term used in this clause has the same meaning as in the GST Act.

  2. Where GST is imposed on a Taxable Supply made in connection with this Agreement and the Recipient of that Supply receives a Tax Invoice for that Supply, the Recipient must pay the GST to the Supplier (without deduction or set-off) by the due date.

  3. If one party is required to indemnify or reimburse another party (the First Party) for any cost, loss or expense, the indemnity or reimbursement payable does not include any amount for which the First Party (or an entity grouped with the First Party for GST purposes) is entitled to an Input Tax Credit, but will be increased in accordance with clause if the amount payable is Consideration for a Taxable Supply.

CONFIDENTIALITY

Protection of Confidential Information

Each party must only use or copy the other party’s Confidential Information for the purposes of this Agreement and must take all steps reasonably necessary to:

  1. maintain the confidentiality of the other party’s Confidential Information; and

  2. ensure that any person who has access to Confidential Information of the other party through it or on its         behalf does not use, copy or disclose that Confidential Information other than in accordance with this    Agreement.

Disclosure of Confidential Information

  1. maintain the confidentiality of the other party’s Confidential Information; and

    • to its Personnel who need to know the Confidential Information for the purposes of this Agreement​

    • as required to be disclosed by law; or

    • with the consent of the other party.

  2. Before disclosing Confidential Information to a person, the disclosing party must take reasonable steps to ensure that the person is aware of the confidential nature of the Confidential Information and has agreed to comply with the confidentiality obligations under this Agreement.

Return of Confidential Information

Each party must, at the other party’s request return, erase, destroy or procure the return, erasure  or  destruction  (as  applicable)  of  all  copies  of  the  other  party’s  Confidential Information in its possession or control.

Injunctive relief

A party will be entitled to seek injunctive relief for any breach or threatened breach of the other party’s obligations of confidentiality.

PRIVACY

  1. Each  party  must comply  with  all  applicable Privacy  Laws  in  relation  to  any  Personal Information that is collected, stored, used, disclosed or otherwise dealt with under or in connection with this Agreement.

  2. To the extent the Customer discloses any Personal Information to invise, the Customer warrants  that  it  has  given  all  necessary  notifications  and has  obtained  all  necessary consents required to disclose that information to invise and to enable its lawful use by invise.

INTELLECTUAL PROPERTY RIGHTS

  1. Each  party  acknowledges  and  agrees  that  the  other  party  (or  its  licensors)  retains ownership of that party's Existing IP.

  2. The Customer grants to invisea non-exclusive, irrevocable, royalty-free licence to use the  Customer's  Existing  IP  during  the  Term  for  the  purpose  of  performing  its obligations under this Agreement.

  3. Unless specified otherwise in the Proposal, subject to the Customer's compliance with this Agreement and payment of all applicable Fees, the Customer will exclusively own all Developed IP in each Deliverable from the date of its creation.

  4. To the extent that any Deliverable incorporates any of invise's Existing IP, invise grants to  the  Customer  a  non-exclusive,  royalty-free  licence  to  use invise's  Existing  IP  to enable the Customer to use the Deliverable.

  5. The Customer grants to invise a non-exclusive, irrevocable, royalty-free licence to use the Developed IP in each Deliverable during the Term for the purpose of performing its obligations under this Agreement.

  6. Despite any other clause in this Agreement, where a Deliverable contains Intellectual Property Rights owned by a third party (e.g. Licensed Software or Documentation for Licensed  Software  or  a  Hardware  Product),  this  Agreement  does  not  transfer ownership  of  such  Intellectual  Property  Rights  to  the  Customer  and  the  applicable third party will retain all Intellectual Property Rights in such Deliverable.

Exclusion of implied terms

Any representation, warranty, condition, guarantee or undertaking that would be implied in this Agreement by legislation, common law, equity, trade, custom or usage is excluded to the maximum extent permitted by law.

Non-Excludable Guarantee

  1. Nothing  in  this  Agreement  excludes,  restricts  or  modifies  any  consumer  guarantee, right or remedy conferred on the Customer by the Australian Consumer Law contained in Schedule 2 to the Competition and Consumer Act 2010 (Cth) or any other applicable law that cannot be excluded, restricted or modified by agreement (Non-Excludable Guarantee).

  2. To  the  maximum  extent  permitted  by  law, invise's  liability  for  breach  of  a  Non-Excludable Guarantee is limited, at invise's option, to;

    • in  the  case  of  goods, the replacement  of  the  goods  or  the  supply  of  equivalent goods, the repair of the goods, the payment of the cost of replacing the goods or of  acquiring  equivalent  goods,  or  the  payment  of  the  cost  of  having  the  goods repaired; or​

    • in the case of services, the supplying of the services again or the payment of the cost of having the services supplied again.

LIABILITY

No reliance on representations

  1. The Customer warrants that it has not relied on any representation or warranties made by invise which has not been stated expressly in this Agreement, or relied upon any descriptions,  illustrations  or  specifications  contained  in  any  document  including websites or publicity material produced or provided by invise.

  2. The Customer acknowledges that to the extent invise has made any representation or warranty which is not otherwise expressly stated in this Agreement, the Customer has been  provided  with  an  opportunity  to  independently  verify  the  accuracy  of  that representation or warranty.

Limitation of Liability

invise will be under no liability to the Customer or any other person in respect of:

  1. any Loss that is directly or indirectly caused by or results from any wrongful, wilful or negligent act or omission of the Customer or any of its Personnel;

  2. any  indirect,  incidental,  special  or  consequential  Loss,  loss  of  profits  or  anticipated profits, loss of revenue, loss of savings, loss of opportunity, or loss or corruption of data suffered incurred by the Customer under or in connection with this Agreement (whether   arising under   contract,   in   tort   (including   negligence)   or   otherwise), irrespective of whether the Customer or its Personnel previously notified invise of the possibility of such loss.

Liability cap

  1. To the maximum extent permitted by law, the maximum aggregate liability of invise for all proven Losses and Claims arising under or in connection with this Agreement, whether in contract, statute, tort (including negligence), equity or otherwise, is limited to  the  Fees paid  by  the Customer to invise under  this  Agreement in  relation  to  the particular  Service,  Software  or  Hardware  Product  which  was  responsible  for  or connected with the relevant Loss or Claim.

  2. The  cap  on invise's  liability  does  not  apply  to  any  injury  or  death  to  a  person,  any breach of this clause or any infringement of a third party's Intellectual Property Rights including under the indemnity

Indemnity

  1. The Customer will at all times indemnify and hold harmless invise and its Personnel (invise Indemnified Parties) from and against any Loss reasonably incurred or suffered by  any  of  the invise Indemnified  Parties  arising  from  any  Claim  against  the invise Indemnified Parties where such Loss was caused by:

    • a breach by the Customer of its obligations under this Agreement;​

    • the Customer's access to and use of a Hardware Product, Software or Services; or

    • any wilful, unlawful or negligent act or omission of the Customer.

  2. invise will  indemnify  and  hold  harmless  the  Customer  from  and  against  any  Loss reasonably incurred or suffered by the Customer arising from any Claim against the Customer  by  a  third  party  alleging  that  the  use  of  the  Developed  Software  or  the Software   Development   Services   provided   under   this   Agreement   infringed   the Intellectual Property Rights of any person. The indemnity is subject to the Customer promptly  notifying invise of  the  relevant  Claim  and  allowing invise to  control  the defence of the Claim.

Termination by invise

Without limiting the generality of any other provision in this Agreement, invisemay suspend and/or terminate its provision of all or any of the Services, Software or the Hardware Products under any Proposal and this Agreement immediately by written notice if the Customer:

  1. is the subject of an Insolvency Event, except to the extent that a stay on the exercise of such a right applies under sections 415D –415G, 434J –434M or 451E –451H of the Corporations Act;

  2. fails to pay an amount owing under this Agreement as provided in this clause; or

  3. commits a breach of this Agreement not related to payment of money and that breach is incapable of remedy or is capable of remedy but the Customer fails to remedy the breach within 15 Business Days of receiving notice requiring it to do so.

TERMINATION BY CUSTOMER

The Customer may terminate this Agreement immediately by written notice, if invise

  1. is the subject of an Insolvency Event, except to the extent that a stay on the exercise of such a right applies under sections 415D –415G, 434J –434M or 451E –451H of the Corporations Act; or

  2. commits a breach of this Agreement and invisefails to remedy the breach within 15 Business Days of receiving notice requiring it to do so.

Consequences of termination

  1. If this Agreement expires or is terminated for any reason:

    • each party may repossess any of its property in the possession, custody or control of the other party;​

    • Customer  must  pay invise all  amounts  payable  as  at  expiry  or  termination (including  early  termination  charges  specified  in  the  Proposal)  and  any  amount which would have become payable but for that termination or expiry;

    • invise may   charge   for   all   costs,   disbursements   and   expenses,incurred   in expectation  of  performing  all  of  the  requirements  of  the  Proposal  including  the cost  of  any  Licensed  Software  Licences,  Licensed  Software  Support  Plans  and Hardware  Products  purchased  for  on  supply  to  the  Customer  prior  to  the termination  date(except  to  the  extent  the  Customer  has  already  paid  the applicable Fees for those items); and

    • all rights that a party has accrued before termination continue.

INVISE PERSONNEL

The Customer must not, during the Term and for 2 years after the expiry or termination of this Agreement, directly or indirectly solicit for employment or engagement the services of any  of invise's  Personnel  involved  in  the  supply  of  the  Services  to  the  Customer.    The Customer  acknowledges  that  the  restraint  is  reasonable  in  its  extent  and  goes  no  further than is reasonably necessary to protect invise's interest in maintaining its Personnel.

Dispute resolution

  1. The  parties  agree  to  use  best  endeavours  to  resolve  in  good  faith  any  dispute concerning this Agreement.

  2. Each  party  must  follow  the  procedures  in  this  clause  before  starting  arbitration  or court proceedings (except for urgent injunctive or declaratory relief).

  3. If a dispute arises between the parties and that dispute cannot be resolved promptly between their nominated contact persons, either party may notify the other party of a  formal  dispute.    Each  party  must  nominate  a  senior  executive  to  meet  with  10 Business Days of the notice (or another agreed period) to try and resolve the dispute.

  4. If the dispute remains unresolved after the expiry of 10 Business Days from the date a party  gave  notice  of  the  dispute,  the  parties  must  try  to  resolve  the  dispute  by mediation administered by the Australian Disputes Centre in accordance with its then-current Guidelines for Commercial Mediation.

  5. Despite the existence of a dispute, and except where otherwise provided, each party will continue to perform its obligations under this Agreement.

Insurance

invise will, during performance of the Services, hold insurance policies for the following risks and to the following minimum amounts:

  1. Public Liability: $20 million per event and in the aggregate;

  2. Professional Indemnity: $10 million per event and in the aggregate; and

  3. Workers Compensation: to the extent required by law.

FORCE MAJEURE

  1. Neither party is liable for not performing an obligation in whole or in part, or for not performing it on time (except an obligation to pay money), because of a Force Majeure Event.

  2. If a Force Majeure Event occurs, the non-performing party must:

    • promptly notify the other party of the event and provide an estimate of the non-performance and delay;​

    • take all reasonable steps to overcome the effects of the event (but this does not require  the  settlement  of  industrial  disputes  or  other  claims  on  unreasonable terms); and

    • resume compliance as soon as practicable after the event no longer affects either party.

  3. If  the  Force  Majeure  Event  continues  for  a  period  of  2  months,  either  party  may terminate this Agreement immediately by giving the other party written notice.

DELIVERY AND DELAYS

  1. invise will use its reasonable endeavours to meet the Delivery Date, Milestone Date or any  other  date  agreed  under  this  Agreement  or  the  Project  Management  Plan  but does not guarantee it will do so.

  2. invise will not be responsible for any delays (or costs and losses arising from delays) which occur during the course of the Term and which arise from any non-compliance by the Customer with this Agreement, an applicable Proposal or Project Management Plan,  the  late  supply  or  provision  of  instructions  and  information  by  the  Customer, delays in obtaining access to the Site or any other delays caused by the Customer's third party suppliers and contractors.

  3. invisewill be entitled to extension of time in respect of any Delivery Date, Milestone Date  or  any  other  date  agreed  under  this  Agreement  equal  to  the  duration  of  any delay caused by Force Majeure Event.​

  4. If the Proposal specifies any service credits payable for the non-achievement of any service levels, those         service credits are the Customer's sole and exclusive remedy for the non-achievement of the applicable service levels.

NOTICES

  1. All notices and consents must be in writing signed by the sender’s contact person, marked to the attention of the recipient’s contact person and sent to the addresses specified in the Proposal or as otherwise notified.

  2. Notices sent:

    • by hand, are taken to be received when delivered;​

    • by post to an address in Australia, are taken to be received by the third Business Day after posting;

    • by post to an  address outside Australia, are taken to be  received by the  seventh Business Day after posting; or

    • by email before 5pm on a Business Day, are taken to be received on the day of transmission (otherwise, if sent after 5pm, on the next Business Day), provided that the sender does not receive an automated notice generated by the sender’s or the recipient’s email server that the email was not delivered.

VARIATION AND CHANGE CONTROL

  1. This Agreement may only be varied by written agreement between the parties.

  2. If either party (the Proposing Party) wishes to vary the Agreement:

    • the  Proposing  Party  will  submit  a  copy  of  the  proposed  variations  to  the  other Party (the Receiving Party), specifying a reasonable period in which the Receiving Party is to provide written notice of acceptance or rejection of the proposal;

    • if the Receiving Party accepts the variations, the Agreement will be deemed to be so amended from the date of acceptance; and

    • if the Receiving Party rejects the proposed variations, each party will perform the Agreement in accordance with the unvaried terms.

MISCELLANEOUS

  1. The Customer acknowledges that invise may subcontract the performance of all or part of its obligations under this Agreement.

  2. Nothing in this Agreement (whether express or implied) is intended to create or constitute a relationship of partnership, agency, employment, trustee or other fiduciary relationship between the parties.  It is the intention of the parties that any such relationship is expressly denied.

  3. A right created by this Agreement may only be waived in writing by the party giving the waiver, and the failure to exercise or any delay in exercising a right or remedy provided by this Agreement or by law does not waive the right or remedy. A waiver of a breach of this Agreement does not waive any other breach.

  4. This Agreement constitutes the entire agreement of the parties about its subject matter and  any  previous  agreements, understandings and negotiations on  that subject matter cease to have any effect.

  5. This Agreement is governed by the laws applicable in NSW, Australia. Each party submits to the non-exclusive jurisdiction of the courts of that place and the courts of appeal from them.

  6. If any clause or part of any clause is held by a court to be invalid or unenforceable, that clause or part of a clause is to be regarded as having been deleted from this Agreement and this Agreement otherwise remains in full force and effect.

  7. A party, at its own cost and within a reasonable time of being requested by another party to do so, must do all things and execute all documents which are reasonably necessary to give full effect to this Agreement.

  8. This Agreement may consist of a number of counterparts and, if so, the counterparts taken together constitute one agreement.

SUPPLY

The Supplier must supply the Goods and/or Services in accordance with the Contract by the date for Delivery, with the benefit of the manufacturer’s warranty statement.

​

The Supplier must ship the Goods to the site(s) specified in the Purchase Order in accordance with invise’s packaging, shipping and delivery procedures notified to the Supplier, or as specified in the Purchase Order or if none are notified or specified, in a manner that ensures safe delivery.

PAYMENT

The Supplier will (only) after actual delivery to invise, issue an itemised valid Tax Invoice for the Price of the Goods and/or the Services, which, without limitation, shall specify the Incidental Costs. invise will not accept any liability or increased cost whatsoever in relation to currency fluctuations from time to time.

​

invise will (except to the extent that a valid Tax Invoice is in dispute) pay the Supplier’s Tax Invoice 30 days from the end of month of its date.

​

If invise is obliged to make any deduction or withholding on account of Tax in connection with the Purchase Order, it will withhold the relevant amount from the gross amount due to the Supplier and will promptly pay that amount to the relevant authority. invise will have no obligation to pay any additional amount to the Supplier in relation to the withheld amount.

TITLE AND RISK IN GOODS

Title and risk in Goods and deliverables relevant to the Services pass to invise on actual delivery to invise.

DOCUMENTATION

On Delivery of Goods or Services, the Supplier must supply invise with

​

  1. all user documentation containing sufficient information in a form usable by invise to enable it to operate, make full use of and maintain Goods; and

  2. any other documentation specified in invise’s Purchase Order or usually supplied with the Goods or Services.

​

invise may make an unlimited number of copies of the Documentation for use in its business operations.

DELAY AND LIABILITY FOR DELAY

The Supplier acknowledges that time is of the essence in effecting Delivery of Goods or Services.

​

If Delivery of Goods or Services is delayed for more than seven (7) days, invise may, with immediate effect by notifying the Supplier:

​

  1. terminate the Contract; and

  2. reject any Goods that have already been delivered to invise.

TERMINATION

invise may terminate a Contract with immediate effect if the Supplier becomes unable to pay its debts when they become due or by providing 14 days written notice to the Supplier.

ACCEPTANCE TESTING

invise may notify the Supplier at any time within 30 days after actual Delivery that:

​

  1. invise rejects the Goods or Services on grounds that they do not comply with the Specifications or the description in the Contract; or

  2. invise accepts the Goods or Services.

REJECTION OF GOODS OR SERVICES

If invise rejects Goods or Services in accordance with the Contract or terminates the Contract, the Supplier must either:

​

  1. replace any Goods rejected by invise or re-perform any Services, at the Supplier’s cost, by the applicable due dates; or

  2. in the case of Goods, immediately credit or refund to invise the total of all amounts paid by invise for the affected goods, and accept return of any of those Goods that have already been delivered to invise; and

  3. in the case of Services, immediately refund to invise that part of the Price prepaid (if any) for affected Services, as notified by invise in its sole discretion. The Supplier’s returns policy will not override this Contract.

WARRANTIES

The Supplier warrants that;

​

  1. all Goods will meet the functional and performance criteria set out in and otherwise conform with the Specifications; be free from defects in design, materials, workmanship and installation; be of good and merchantable quality and fit for use; and when supplied to invise, be new and not used by any person (unless agreed in writing by invise);

  2. all Documentation will be in English, complete and accurate, and suitable and sufficient for use by invise and its personnel to operate, to make full use of and to maintain the Goods or Services as the case may be;

  3. any of its sales or marketing collateral in respect of the Goods or Services is accurate and complete;

  4. the Goods or Services do not infringe the intellectual property rights of any third party;

  5. all Services will be supplied in a good, workmanlike and timely manner; be carried out by competent and trained personnel to the highest industry standards; and in accordance with any applicable service schedule or statement of work;

  6. in providing the Services, it will not be in breach of any obligation owed to any person and that it holds all licences and approvals necessary for or incidental to providing the Services; and

  7. it will comply with all laws, ordinances, rules, regulations, codes and the requirements and direction of any relevant Commonwealth, State and Local Government departments or bodies in force from time to time.

​

If at any time during the Warranty Period the Supplier becomes aware or invise notifies the Supplier of any failure of those Goods or Services to comply with any of the warranties given above, the Supplier, at its cost, will promptly correct that failure. This clause applies notwithstanding anything to the contrary in any documentation accompanying, or provided by the Supplier in connection with, the Goods or Services.

​

​

RIGHT TO ON-SUPPLY

invise may on-supply any Goods to any customer of invise (On-Supplied Goods) other than those that are specifically agreed by invise and the Supplier as being only for invise’s internal use. All the warranties set out above will apply to the On-Supplied Goods.

​

Nothing in this Contract limits or excludes the Supplier’s obligations or invise’s rights and remedies under Part VA or Part V Division 2A of the Trade Practices Act 1974 (Cth).

​

The Supplier indemnifies invise against any damages suffered or incurred by invise as a result of:

​

  1. liability for manufacturing defects on on-supplied goods; or

  2. liability of invise which arises as a result of any customer claim in relation to any defective On-Supplied Goods.

INSURANCE

The Supplier must effect and maintain statutory workers compensation insurance, public, products and professional liability insurance to cover any and all costs and expenses of whatsoever kind or nature which invise may suffer or incur as a result of or in connection with any claim, demand, action or proceeding brought by any party including any officer, employee or sub-contract or of the Supplier.

INDEMNITIES

To the extent permitted by law, the Supplier indemnifies invise and their Personnel (“those indemnified”) against all Damages suffered or incurred by any of those indemnified (including those suffered or incurred as a result of a claim by a third party against any of those indemnified) in connection with:

​

  1. any breach of the terms of this Contract by the Supplier

  2. any injury to or death caused, or contributed to, by a negligent act or omission of the Supplier or its personnel, subcontractors or agents;

  3. any damage to any property caused by, or contributed to by, an act or omission (including negligent acts and omissions) of the Supplier or its personnel, subcontractors or agents; or

  4. any wilful, unlawful or negligent act or omission of the Supplier or its personnel, subcontractors or agents.

LIMITATION OF LIABILITY

To the extent permitted by law, invise:

​

  1. excludes all liability to the Supplier for any consequential or indirect losses arising from a breach of a contract, tort or under statute; and

  2. limits its total liability to the Supplier for all other loss or damage to 1.5 times the Price paid or payable under the Contract.

INTELLECTUAL PROPERTY RIGHTS

invise will own all material created by the Supplier in performing the Services. To facilitate this the Supplier:

​

  1. assigns to invise all future intellectual property rights in all such material (whether that material is created alone or jointly with invise); and

  2. acknowledges that no additional documentation is necessary to complete the assignment and by virtue of this clause all such future intellectual property rights will vest in invise.

​

To the extent that Goods or Services contain existing intellectual property rights, the Supplier hereby grants to invisean irrevocable, perpetual licence to copy, use and modify same.

CONFIDENTIAL INFORMATION

The Supplier will take all reasonable precautions to ensure that all Confidential Information is treated as confidential and not disclosed to any person(s) or used other than for the purposes of the Contract and will return all Confidential Information immediately upon request by invise.

DEFINITIONS

invise will own all material created by the Supplier in performing the Services. To facilitate this the Supplier:​

‘Business Day’

means a day which is not a Saturday, Sunday, public holiday or bank holiday  in  the  location  where  Hardware  Products,  Software  or  the  Services  are delivered.

‘Claim’

means any claim, action, proceeding or investigation of any nature or kind and includes the allegation or threat of a claim.

‘Commencement Date’

means the date determined and agreed for start of the work, considering:

  1. Customer's acceptance of Proposal

    • the Commencement Date is the date the Customer notifies invise of its acceptance of the Proposal.

  2. Third Party Supplier acceptance

    • Where the Proposal is expressed to be subject to be conditional on a third party agreeing or providing its consent to a particular matter:​

      • the  provision  of  the  Proposal  by invise to  the  Customer  is deemed to be an invitation to treat;​

      • the  Customer’s  acceptance  of  the  Proposal  will  not  form  a binding  agreement  between  the  Customer  and invise,  but instead is an offer capable of acceptance by invise;

      • following acceptance of a Proposal by the Customer, invise will give notice to the Customer once that third party’s agreement or consent has been given and on such date, an agreement is formed between invise and Customer; and

      • the  date invise notifies  the  Customer  of  the  third  party’s agreement or consent is the Commencement Date.

‘Contract’

means the contract between the Supplier and invise consisting of this Purchase Order, the Specifications and these terms and conditions.

‘Confidential Information’

means the following information, regardless of its medium of form, whether or not it is marked as confidential, and whether the recipient of the information became aware of it before or after the Commencement Date:

  1. the existence and terms of this Agreement;​

  2. information of a party (disclosing party) that is:

    • made available by or on behalf of the disclosing party to the other party (receiving  party),  or  is  otherwise  obtained  by  or  on  behalf  of  the receiving party; and

    • by  its  nature  confidential  or  the  receiving  party  knows,  or  ought reasonably to know, is confidential,​
  3. but does not include information that:
    • is in or enters the public domain through no fault of the receiving party or any of its Personnel;​
    • is  or  was  made  available  to  the  receiving  party  by  a  person  (other  than  the disclosing party) who is not or was not then under an obligation of confidence; or
    • is or was developed by the receiving party independently of the disclosing party and any of its Personnel.

‘Damages'

means any and all loss, damages, penalties, costs and expenses including legal fees and disbursements and costs of investigation, litigation, settlement, judgment and interest (regardless of whether they arise in contract, tort (including negligence) or under any statute) including workers’ compensation benefits payable under a statutory workers’ compensation scheme, together with increased workers’ compensation premiums (to the extent of the increase);

‘invise’

means invise Pty Ltd or any of its Related Body Corporates, as specified on the Purchase Order.

‘Consultancy Services’

means the consulting or related services (if any) described in the Proposal which invise must supply to the Customer.

‘Corporations Act’

means the Corporations Act 2001 (Cth).

‘CPI’

means  the  Consumer  Price  Index,  Australia,  All  Groups,  Weighted  Average  of Eight Capital Cities, published by the Australian Bureau of Statistics and, if that index ceases to be published, an alternative consumer price index nominated by invise.

‘Customer'

means  the  company,  person,  or  other  entity  named  as  the  customer  or client in the Proposal.

‘Defect’

means any characteristic which makes the whole or any part of the Hardware Product, Software or Services    materially inoperable or materially inconsistent with the Requirements Definition, relevant Documentation or this Agreement.

‘Deliverable’

means anyitem or material which is brought, or required to be brought into  existence  by  or  on  behalf  of invise,  and  delivered  to  the  Customer  under  this Agreement.   

‘Delivery Date’

means the date any Hardware Product is scheduled for delivery or the date on which invise makes any Software available to the Customer, as specified in the Proposal or as otherwise agreed between the parties from time to time.

‘Developed IP’

means all present or future Intellectual Property Right which is brought or required to be broughtinto existence by or on behalf of invise under this Agreement.

‘Delivery’

in the case of Goods, means delivery to the site(s) specified in the Purchase Order by the date specified therein or otherwise within 30 days of the date of the Purchase Order; in the case of Services means the latest date specified in the Purchase Order as the delivery or completion date, or in either case such other date as the parties may agree.

‘Documentation’

means the documentation to be provided by the Supplier or relevant manufacturer.

'Existing IP'

of a party, means any Intellectual Property Right that:

  1. is in existence at the date of this Agreement; or

  2. comes into existence after the date of this Agreement other than in connection with this Agreement.

‘Fees’

means the fees payable by the Customer to invise for the supply of the Hardware Products,  Services  and  Software  as  specified  in  the  Proposal  and  also  includes  any expenses payable by the Customer as required under this Agreement.

‘Force Majeure Event’

means any circumstance not within the reasonable control of the affected party, to the extent that the circumstance, or its effect upon the affected party, could not have been avoided, prevented or circumvented despite the exercise of reasonable diligence by the affected party.

‘Goods’

means the goods, including hardware, software and third-party maintenance contracts specified in the Purchase Order.

‘Government Authority’

means any government, governmental, semi-governmental, administrative, or judicial body, agency or entity.

‘GST’

has the meaning given in the New Tax System (Goods and Services Tax) Act 1999.

‘Incidental Costs’

means any Tax and duties, freight, travel and accommodation incurred by the Supplier in supplying Goods and/or Services.

‘Hardware Installation’

Service means installation, connection and/or commissioning service for the Hardware Products (if any) described in the Proposal which invise must supply to the Customer.

‘Hardware Products’

means the particular computer hardware and related accessories (if any) described in the Proposal which invisewill supply to the Customer.

‘Harmful Code’

means any computer program or virus or other code that is harmful, destructive, disabling or which assists in or enables theft, alternation, denial of service, unauthorised access to, or disclosure, destruction or corruption of, information or data.

‘Insolvency Event’

, in relation to a party (Insolvent Party),means any one or more of the following:

  1. the Insolvent Party ceases or takes steps to cease to conduct its business in the normal manner;

  2. the  Insolvent  Party  enters  into  or  resolves  to  enter  into  any  arrangement, composition or compromise with or assignment for the benefit of its creditors or any class of them;

  3. the Insolvent Party is unable to pay its debts when they are due or is deemed under the Corporations Act to be insolvent;

  4. a  liquidator  or  provisional  liquidator  is  appointed  to  the  Insolvent  Party  or  a receiver,  receiver  and  manager,  official  manager,  trustee  or  similar  official  is appointed over any of the assets or undertakings of the Insolvent Party;

  5. an application or order is made or a resolution is passed for the winding up of the Insolvent Party; or

  6. any act or event analogous or having a substantially similar effect to any of the events specified in paragraphs (a) to (e) of this definition.

‘Intellectual Property Rights’

means all intellectual property rights, including without limitation:

  1. patents, inventions, copyright, registered designs, trade marks, rights in circuit layouts and the right to have confidential information kept confidential; and

  2. any application or right to apply for registration of any of those rights.

‘Licensed Software’

means the third party licensed software (if any) identified in the Proposal, which invisemust supply to the Customer.

‘Licensed Software Licence’

Licensed Software Licence means the relevant end user licence terms applicable to the Licensed Software.

‘Licensed  Software  Support  Plan’

means  a  software  support  plan  for  Licensed Software (if any) as described in the Proposal which invisemust supply to the Customer.

‘Loss’

means any loss, damage, liability, charge, expense, outgoing or cost (including all legal and other professional costs on a full indemnity basis) of any nature or kind.

‘Milestone Date’

means in respect of a specific task which is to be performed by invise as part of the Services, the target date for the performance of the relevant task.

‘Personal Information’

has the meaning given to it in the Privacy Act.

‘Personnel’

means,  in  respect of  a  party,  its  officers,  employees, agents, contractors and subcontractors.

‘PPSA’

means the Personal Property Securities Act 2009 (Cth) as amended from time to time.

‘Privacy Act’

means the Privacy Act 1988 (Cth).

‘Privacy Laws’

means:

  1. the Privacy Act;

  2. all  applicable  laws  affecting  privacy,  Personal  Information  or  the  collection, handling, storage, processing, use or disclosure of data; and

  3. any  legally  binding  ancillary  rules,  guidelines,  orders,  directions,  directives, codes of conductor other instruments made or issued thereunder,

as amended from time to time.

‘Proposal’

means the written proposal which has been accepted by the Customer that describes (as applicable):

  1. the Hardware Products;

  2. the Hardware Installation Service;

  3. the Software Development Service;

  4. the Developed Software Support Service;

  5. the Software Installation Service;

  6. the Licensed Software Licence;

  7. the Licensed Software Support Plan; or

  8. the Consultancy Service,

which are to be supplied by invise to the Customer under this Agreement. To the extent the Proposal includes any pre-sales information which invise may have provided to the Customer, such information does not form part of this Agreement.

‘Price’

for Goods and Services means the amount specified in the Purchase Order, which is inclusive of Incidental Costs.

‘Purchase Order’

means the purchase order above or on the front of this document.

‘Services’

means, in respect of a Proposal:

  1. the Hardware Installation Services;

  2. the Software Installation Services;

  3. the Software Development Services;

  4. the Developed Software Support Services;

  5. the Consultancy Services; and

  6. any  other  services  which  the  Proposal  requires invise to  provide  to  the Customer.

‘Specifications’

for Goods means the Supplier’s or its manufacturer’s published technical specification for those Goods and any other requirements agreed in writing by the parties in relation to the quality, functionality, performance, interpretability, testing or any other criteria with respect to those Goods.

‘Site’

means the location or locations at which the Hardware Products will be delivered, and the Services will be provided (if applicable) as specified in the Proposal.

‘Software’

means  the  Licensed  Software  or  Developed  Software  as  the  context requires.

‘Software Installation Service’

means the Software Installation Service (if any) for the relevant  Licensed  Software  or  the  Developed  Software  as  described  in  the  Proposal, which invise must supply to the Customer. 

‘Supplier’

means the party specified as such on the Purchase Order.

‘Tax’

includes any tax, good and services tax, withholding tax, charge, rate, duty or impost imposed by any authority at any time.

‘Tax Invoice’

has the meaning given in the New Tax System (Goods and Services Tax) Act 1999.

‘Warranties’

for Goods or Services means the warranties specified below.

‘Warranty Period’

for Goods means either: 24 months after the actual delivery of those Goods or the manufacturer’s standard warranty period, whichever is the longer.In respect of any Services, 1 month from the date the relevant Services were performed.

CONFIDENTIAL INFORMATION

  1. a reference to:

    • the singular includes the plural and the plural includes the singular;

    • a clause or schedule, is a reference to a clause of or schedule to this Agreement;

    • a statute, ordinance, code or other law, includes subordinate legislation (including regulations) and other instruments under it and consolidations, amendments, re-enactments or replacements of any of them;​

    • a  person  or  entity,  includes  an  individual,  a  firm,  a  body  corporate,  a  trust,  an unincorporated association or an authority;

    • a day or a month, means a calendar day or calendar month; and

    • money (including ‘$’, ‘AUD’ or ‘dollars’), is to Australian currency;

  2. the meaning of any general language is not restricted by any accompanying example, and the words ‘includes’, ‘including’, ‘such as’, ‘for example’ or similar words are not words of limitation;

  3. headings are for convenience only and do not form part of this Agreement or affect its interpretation;

  4. if a period of time is specified and dates from a given day or the day of an act or event, it is to be calculated exclusive of that day; and

  5. if the last day for doing an act is not a Business Day, the act must be done instead on the next Business Day.

INTERPRETATION –ORDER OF PRECEDENCE

This Agreement  is comprised  of  the  following documents which  apply  in  the  following order of precedence:

  1. the Proposal;

  2. these terms and condition,

with the result that any inconsistency between these documents will be resolved in favour of the earlier listed documents, to the extent of any conflict or inconsistency.

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