1.1 This Agreement. This Agreement is between Sapio Pty Ltd Pty Ltd (ABN 88 169 549 820) (“we”, “us” or “our”) and the individual or entity that has executed and entered into the relevant Order Form (“you” or “your”). By placing an order for Services through an Order Form, you agree to be bound by and comply with the terms of this Agreement.
1.2 Structure of this Agreement. This Agreement comprises: (a) the applicable Service Terms; (b) clauses 1 to 9 of this document (the “General Terms”); and (c) the relevant Order Form (including any attachment to the relevant Order Form). If there is an inconsistency between the parts of this Agreement, the document listed earlier in this clause 1.2 prevails to the extent of the inconsistency.
1.3 Term. This Agreement begins on the date on which the relevant Order Form is executed by the last party and continues until all Services under that Order Form have been terminated, unless this Agreement is terminated earlier in accordance with its terms.
2.1 Services. We will supply each Service to you on the terms of this Agreement during the applicable Service Period.
2.2 Quality of the Services. We will: (a) provide the Services with due care and skill (but do not guarantee that they will be continuous or fault free), using competent and suitably qualified personnel, and otherwise in accordance with all applicable laws; and (b) ensure that any goods, hardware or equipment supplied in connection with the Services are reasonably fit for the purpose for which they are supplied.
2.3 Service Period. Unless agreed otherwise in an Order Form, at the end of the Initial Service Period for a Service, that Service will automatically renew and continue on a month-to-month basis unless you notify us in writing at least 30 days before the end of the Initial Service Period. If a Service renews on a month-to-month basis after the end of the Initial Service Period, we may amend the applicable fees for that Service by written notice to you in accordance with clause 3.5 below and/or to reflect any price increase impose on us by our suppliers or service providers.
2.4 Your obligations. You must: (a) only use the Services (and any hardware or equipment supplied by us in connection with the Services) in accordance with this Agreement and all applicable laws; (b) ensure that all equipment not supplied by us and connected to the Services by you (or on your behalf) is technically compatible with the relevant Service, and that such equipment and your Premises comply and are used in accordance with all reasonable procedures notified by us when used in connection with the Services; (d) not alter, modify, reverse engineer, copy or tamper with any part of the Services, or allow a third party to do any of these acts; (e) not repair or attempt to repair (yourself or through a third party service provider other than us) any equipment or hardware supplied by us in connection with the Services; (f) ensure that your equipment and Premises are safe in accordance with, and comply with, all applicable health and safety laws; and (g) not permit any third party to use the Services.
3.1 Fees. You must pay us all applicable fees for your Services, as set out in this Agreement.
3.2 Invoicing and payment. The fees for your Services are usually billed monthly in arrears, except for the fees this Agreement expressly specifies are payable in advance or by a specific date (in which case those fees will be invoiced accordingly). You must pay all invoices issued by us under this Agreement within 30 days of the date of invoice.
3.3 Disputes. If you genuinely dispute an invoice you do not need to pay the disputed amount until the dispute is resolved, however you must pay all undisputed amounts by their due date.
3.4 Failure to pay. If you do not pay any amount due under this Agreement on time, we may: (a) on 7 days notice, decrease or withdraw any off-tariff or discounted pricing for those Services until all unpaid amounts are paid; and/or (b) charge you interest (calculated on a daily basis) on any unpaid amounts at an annual rate equivalent to the Official Cash Rate set by the Reserve Bank of Australia.
3.5 CPI Increase. All fees in connection with any Service we supply to you under this Agreement, will be increased (but not decreased) on each anniversary of the start date of that Service to an amount calculated by multiplication of the then current amount by a fraction, the numerator of which is the then-current CPI and the denominator of which is the CPI current one year previously (but only where such fraction is positive).
4.1 Confidentiality. Each party must treat as confidential information all information provided by the other party under this Agreement, including our technical, operational, billing, pricing and commercial information in relation to the supply of Services. The terms and content of any Order Form are our confidential information. A party must not disclose the other party’s confidential information to any person except: (a) to its employees, lawyers, accountants and our sub-contractors on a ‘need to know’ basis provided those persons first agree to observe the confidentiality of the information; (b) with the other party’s prior written consent; (c) if required by law, any regulatory authority or stock exchange; or (d) if it is in the public domain.
4.3 Intellectual Property. Unless expressly specified otherwise in this Agreement: (a) nothing in this Agreement transfers ownership of, or otherwise grants any rights in, any Background Material of a party to the other party; (b) we own all Intellectual Property Rights in any Contract Material and grant to you a non-exclusive, royalty free licence to use the Contract Material for the sole purpose of receiving and using the relevant Service; (c) you assign to us any Intellectual Property Rights you may have in any Contract Material immediately from creation; and (d) you grant to us a non-exclusive, royalty free licence to use your Background Material to the extent necessary for us perform our obligations under this Agreement and supply the Services to you.
5.1 Termination for breach. If a party commits a material breach of this Agreement and does not remedy the breach within 30 days of receiving a notice to do so, then the other party may terminate this Agreement (if the breach affects this Agreement) or terminate the relevant Service (if the breach only affects a specific Service).
5.2 Termination for convenience. You may terminate a Service at any time on 30 days’ notice, however we may charge you the applicable Early Termination Charges (if any) if do so before the end of the Initial Service Period for that Service. If you cancel your Service in accordance with this clause 5.2 and then ask us to reconnect your Service, we may require you to pay a re-connection fee, which we will notify to you in writing. We may terminate this Agreement in whole or in part (including a specific Service) by giving you 30 days’ written notice.
5.3 Suspension or cancellation of a Service. We may limit, suspend or cancel the provision of a Service at any time by notice to you if you do not pay any amounts due for that Service on time, or if you become or are likely to become (in our reasonable opinion) bankrupt or insolvent. Additionally, we may limit, suspend or cancel the provision of a Service at any time without notice to you: (a) in the event of an emergency or in order to provide resources to emergency and other essential services; (b) if, in our reasonable opinion, the provision of a Service is liable to cause death or personal injury or damage to property; or (c) if the supply or use of a Service is or is likely to become unlawful.
5.4 Exiting a Service from the market. If we decide, or are required, to exit a Service from the market, then we may, by giving you prior reasonable notice, either migrate you to the modified service or an alternative service (and if requested by us you will provide reasonable assistance to enable us to do so) or cancel the Service.
5.5 After expiry or termination. If this Agreement or a Service expires or is terminated for any reason: (a) you must pay us all outstanding invoices by the due date, all other amounts outstanding as at the date of the expiry or termination (including any applicable Early Termination Charges); and (b) all rights accrued before expiry, termination or cancellation continue.
6.1 Failure to meet service levels. If we fail to meet any of our service level obligations as a result of any interruption or delay to your Service, we accept liability to you, but limit our liability to the applicable service level rebates or credits. Where you are not entitled to a service level rebate or credit, we limit our liability to an amount equal to the fees billed for the affected Services for the period of the interruption or delay.
6.2 Limitation of liability. We accept liability arising from our breach of contract or negligence: (a) for any personal injury or death to you, your Personnel in relation to the supply of the Services; (b) for any damage to your real or tangible property resulting from the supply of the Services, but we limit our liability to our choice of repairing or replacing the property or paying the cost of repairing or replacing it; and (c) unless clause 6.1 applies, for any other cost or expense you reasonably incur that is a direct result of, and flows naturally from, such breach or negligence (but excludes loss of profits, revenue, business opportunities, likely savings and data), but we limit our liability for all such claims in aggregate to the total amount payable to us under this Agreement during the first year of this Agreement.
6.3 Third party IP claims. We indemnify you against any direct loss, damage, liability, costs or expenses incurred by you as a result of a claim by a third party against you that the Services or any material provided by us under this Agreement infringes the Intellectual Property Rights of the third party, subject to you allowing us to direct any defence and settlement of the claim. This indemnity does not apply to the extent the claim arises out of any modification of any materials provided by us, relates to services or materials provided by a third party in conjunction with the Services, or is caused or contributed to by you. Where any person makes a claim for Intellectual Property Right infringement in connection with the provision of Services or materials by us, we may modify, limit, suspend or cancel the provision of Services or materials, if required, in response to the claim.
6.4 Exclusions. Other than for the liability we accept under clauses 6.1, 6.2 and 6.3, we exclude all other warranties, rights, remedies and liability to you or a third party for breach of contract, negligence or breach of any other law. Notwithstanding anything else in this clause 6: (a) our liability will be reduced to the extent the loss or damage is caused by you or your Personnel; and (b) for any liability which cannot lawfully be excluded but can be limited (including under the Competition and Consumer Act 2010 (Cth)), our liability is limited to our choice of re-supplying or paying the cost of re-supplying services and repairing, replacing or paying the cost of repairing or replacing goods.
7.1 Governance: We may meet with you from time to time (as agreed between you and us in writing) to discuss and review our performance of the Services.
7.2 Dispute resolution. In the even of a dispute in relation to this Agreement or any Service, each party must follow the procedures in this clause 7.1 before starting arbitration or court proceedings (except for urgent injunctive or declaratory relief). The parties agree to use best endeavours to resolve in good faith any dispute concerning this Agreement or a Service. If a dispute arises between the parties that cannot be resolved promptly between our contact person and your contact person, either party may notify the other party of a formal dispute. Each party must nominate a senior executive to meet within 7 days of the notice (or another agreed period) to try and resolve the dispute. If the dispute remains unresolved, the parties must try to resolve it by mediation administered by the Australian Commercial Disputes Centre according to its Mediation Guidelines.
7.3 Force majeure. If a party is unable to perform or is delayed in performing an obligation under this Agreement (other than an obligation to pay money) because of an event beyond that party’s reasonable control (“Force Majeure Event”), that obligation is suspended but only so far and for so long as it is affected by the Force Majeure Event. If a Force Majeure Event occurs, the non-performing party must: (a) promptly give the other party notice of the event and an estimate of the non-performance and delay; (b) 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 (c) resume compliance as soon as practicable after the event no longer affects either party.
7.4 Notices. All notices and consents must be in writing and in English. If any notice of dispute, termination or breach is given by email, a copy must also be given by hand or pre-paid post, failing which the notice sent by email will be void and have no effect. Notices sent: (a) by hand are taken to be received when delivered; (b) by post to an address in Australia are taken to be received by the third Business Day after posting; (c) by post to an address outside Australia are taken to be received by the seventh Business Day after posting; or (d) by email are taken to be received on the second Business Day after the date of sending provided that the party giving notice has not received a delivery failure or similar notification (in which case notice will not have been given).
8.1 Survival. If this Agreement expires or terminates for any reason, clauses 2.3 (Your obligations), 4 (Confidentiality and privacy), 5.5 (After expiry or termination), 6 (Risk allocation), 7.2 (Dispute resolution), 7.4 (Notices) and this clause 8 (General) in full force and effect.
8.2 Entire agreement. This Agreement constitutes the entire agreement between the parties about the Services, and supersedes any previous agreement or representation relating to the Services. You warrant that you have not relied on any representations or warranties by us other than those in this Agreement.
8.3 Governing law. This Agreement is governed by the laws of New South Wales (Australia). Each party submits to the nonexclusive jurisdiction of the courts of that place and the courts of appeal from them.
8.4 Variations. This Agreement may only be varied by written agreement between the parties.
8.5 Severability. 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.
8.6 Waiver of rights. 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.
8.7 Assignment and novation. A party must not assign its rights or novate its obligations under this Agreement without the other party’s prior written consent, which must not be unreasonably withheld.
8.8 Taxes. Subject to the remainder of this clause, you must pay all Taxes in connection with the Services. 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 tax invoice due date. If one party is required to indemnify or reimburse another party (“Payee”) for any cost, loss or expense, the indemnity or reimbursement payable does not include any amount for which the Payee (or an entity grouped with the payee for GST purposes) is entitled to an input tax credit, but will be increased in accordance with the preceding sentence if the amount payable is consideration for a taxable supply.
9.1 Definitions. In this Agreement, the following terms have the meaning given to them below:
9.2 Interpretation. In this Agreement: (a) a reference to this Agreement includes all its parts described in clause 1.2; (b) a reference to a statute, code or other law includes regulations and other instruments under it and consolidations, amendments, re-enactments or replacements of any of them; (c) terms used that are defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) have the meaning given in that Act, unless the context makes it clear that a different meaning is intended; (d) a reference to a party includes a reference to the party’s executors, administrators, successors and assigns; (e) the singular includes the plural, and vice versa; (f) “includes”, “including”, “for example”, “such as” and similar terms are not words of limitation; and (g) clause headings are for convenient reference only and have no effect in limiting or extending the language to which they refer.
ABN: 88 169 549 820 | Licenses: NSW: 000101018 | ACT: 17502283 | SA: 262413 | VIC: 87479810S | QLD: 3709952 | WA: SA49240 7S191 | NT: 348 | TAS: 20607