Software Supply & Services Agreement
TERMS AND CONDITIONS
1. DEFINITIONS AND INTERPRETATION
1.1. Definitions
In this Agreement, unless the contrary intention appears:
Agreement means this Software Supply & Services Agreement and any Statement of Work.
Authorised Officer means, in respect of a party, a director or secretary of the party or any other person appointed by the party and listed in the Statement of Work to act as an Authorised Officer under this Agreement.
Business Day means a day other than a Saturday, Sunday or public holiday in Melbourne, Australia.
Client means the person to whom Simple.space is to provide the Services and Software in accordance with the Agreement.
Client Materials means any information, documents or other materials owned by the Client and reasonably required by Simple.space for the purposes of providing the Services and Software, including as specified in the Statement of Work.
Commencement Date means the date the Services or Software (as the case may be) are first provided by Simple.space to the Client.
Confidential Information means this Agreement and any information, financial statements, reports, technical data, manuals, diagrams, schematics, information regarding the business and commercial affairs of the other party and any other materials of a party, in any form, whether prepared before of after the date of this Agreement and includes any reproduction of or modification to the Confidential Information. In relation to the Client, Confidential Information includes the Client Materials.
Corporations Act means the Corporations Act 2001 (Cth).
Dispute has the meaning given to it in clause 19.1.
Fees has the meaning given to it in clause 7.1.
Government Agency means any governmental, semi-governmental, administrative, fiscal, judicial or quasi-judicial body, department, commission, authority, tribunal, agency or entity.
Initial Period has the meaning given to it in clause 19.3.
Intellectual Property means all intellectual property of any kind or nature and includes any rights to and any interest in, logos, trademarks, patents, inventions, discoveries, innovations, products, designs, styles, copyright, moral rights, Confidential Information, ideas, know-how, trade secrets, proposals and concepts, either developed by or proprietary to a party, whether registered or unregistered and whether capable of registration or not.
Insolvency Event means if a party has:
(a) an application presented against it (that is not discharged or withdrawn within 10 Business Days of its presentation), an order made, a resolution passed or a meeting summoned or convened for the purpose of considering a resolution for its winding up;
(b) any execution or other process of any Court or authority issued against or levied upon any of its assets and that execution or process is not discharged or withdrawn within 60 Business Days after the date of issue;
(c) ceased to pay its debts or suspended payment generally or would cease or threaten to cease to carry on its business or become insolvent or be presumed by a court to be insolvent within the meaning of the Corporations Act;
(d) an administrator, trustee, liquidator, provisional liquidator, receiver, receiver and manager, or controller other than a receiver or receiver and manager is appointed to it or over all or any part of its assets or undertaking;
(e) entered into or resolved to enter into an arrangement, composition or compromise with, or assignment for the benefit of its creditors generally or any class of creditors or proceedings are commenced to sanction such an arrangement, composition or compromise other than for the purposes of a bona fide scheme of solvent reconstruction or amalgamation;
(f) a meeting of its directors, shareholders or creditors convened, summoned or held for the purpose of considering or agreeing to any resolution for the winding up or administration of the party; or
(g) threatens or ceases to trade.
Payment Terms has the meaning given to it in clause 7.2.
Personal Information means any information or opinion, whether true or otherwise and whether or not recorded in material form, about an individual from which the identity of the individual is apparent or can reasonably be ascertained.
Personnel means officers, directors, employees, agents, contractors and subcontractors.
Services means the services relating to the Software to be provided by Simple.space as set out in the Statement of Work.
Simple.space means Simple Space Australia Pty Ltd ABN: 85 153 632 458.
Software means the software developed, created and/or owned by Simple.space as set out in the Statement of Work, including the code, programs, data, any relevant manuals or documentation, any modifications, updates, upgrades or variations to such software from time to time.
Software Licence means the licence granted by Simple.space in relation to the Software in accordance with clause 3.
Software Term means from the Commencement Date until the expiry of the term of the Software Licence as specified in the Statement of Work.
Statement of Work means a document or proposal or order form, as agreed to between the parties, setting out a scope of work(s) and or specification(s) for Services, Software or work packages to be performed by Simple.space, and commercial terms, plus any specific commercial considerations for the Services and/or Software as described in the Statement of Work.
Term means from the Commencement Date until the Services are completed, unless otherwise specified in the Statement of Work.
1.2. Interpretation
In this Agreement unless the context otherwise requires:
1.2.1 any reference to “A$” or “$” is to the lawful currency for the time being of Australia;
1.2.2 the words “include”, “including”, “for example” “such as” or cognate expressions are to be constructed without limitation;
1.2.3 headings are for convenience and do not affect interpretation;
1.2.4 a reference to a time is a reference to Australian Eastern Standard Time or Australian Eastern Daylight Time, whichever is appropriate in the context;
1.2.5 a reference to a party includes its executors, administrators, successors, substitutes (including persons taking by novation) and permitted assigns;
1.2.6 no rule of construction applies to the disadvantage of a party because that party was responsible for the preparation of this Agreement or any part of it; and
1.2.7 if the day on or by which any act, matter or thing is to be done is a day other than a Business Day, the act, matter or thing will be done on the next Business Day.
1.3. Corresponding Meaning
A term defined in the Statement of Work has the same meaning in this Agreement, unless the context requires otherwise.
2. SERVICES
2.1 The Client engages Simple.space to provide the Services and Simple.space agrees to use reasonable endeavours to provide the Services to the Client, substantially in accordance with the Statement of Work and the terms and conditions of this Agreement.
2.2 Unless otherwise agreed between the parties, Simple.space may provide the Services remotely from its or any other premises.
2.3 The Client acknowledges that Simple.space is providing Services to the Client on a non-exclusive basis and that Simple.space may provide services of the same or a similar nature to any third party.
2.4 Simple.space may provide the Services in the manner determined by it in its absolute and sole discretion, so long as in doing so, it does not breach any material provision of this Agreement.
3. SOFTWARE LICENCE
3.1 Simple.space grants to the Client a non-exclusive, non-transferable, limited licence to access and use the Software for the Client’s own internal business purposes for the Software Term subject to the further terms and conditions of this Agreement. Any rights not expressly granted in this Agreement are expressly reserved.
3.2 The Client acknowledges that the Software and its structure, organisation, source and object code constitute valuable trade secrets of Simple.space. Accordingly, the Client will not, directly or indirectly, do any of the following without the prior written consent of Simple.space:
3.2.1 modify, adapt, alter, translate, or create derivative works from the Software;
3.2.2 merge the Software with other software;
3.2.3 sublicense, lease, rent, loan, distribute, sell or otherwise transfer or make available the Software to any third party;
3.2.4 reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code for the Software or evaluate the
Software in order to develop a competitive product;
3.2.5 use the Software to process data or provide any service bureau activity for any third party; or
3.2.6 otherwise access or use the Software except as expressly allowed under this Agreement.
3.3 Simple.space may, at any time, take any action it considers reasonably necessary to protect its interests in connection with the Services and Software, including by suspending, terminating or imposing conditions on, the Client’s or its Personnel’s access to or use of the Services or Software (without any obligation to refund or remit any fees paid or due and payable by the Client under this Agreement), including if Simple.space reasonably believes that the Services or Software have been used (or may be used) by the Client or its Personnel in a manner which is likely to have an adverse effect on Simple.space or a third party.
4. CLIENT’S OBLIGATIONS
4.1 The Client authorises Simple.space to access the Client’s computer system and facilities, whether remotely or otherwise, for the sole purpose of providing the Services and Software.
4.2 The Client will provide Simple.space with all reasonable assistance and facilities without charge to enable Simple.space to provide the Services and Software, including remote access to its computer system and facilities, office facilities and access to necessary Personnel, and Simple.space will take reasonable steps to comply with any reasonable Client policies and processes associated with using the Client’s facilities and or resources as advised by the Client.
4.3 The Client agrees to provide Simple.space with the Client’s Materials and all such information and assistance as may be reasonably required by Simple.space in order for it to provide the Services and Software.
4.4 The Client agrees to formally notify Simple.space of any changes to the Client Materials or new information or developments which are or may be relevant to provision of the Services and Software.
4.5 During this Agreement, the Client will maintain sole responsibility for:
4.5.1 the management, conduct and operation of the Client’s business;
4.5.2 the access to, use of and reliance upon the Services and Software;
4.5.3 any decisions made in relation to implementing the Services or in connection with the access to or use of the Software; and
4.5.4 any action required by the Client to realise any benefits that may result from the Services or in connection with the access to or use of the Software.
5. BENEFIT OF SERVICES
The Client acknowledges and agrees that any advice, recommendation, information or product provided by Simple.space is made available for the sole use of the Client and must not be relied upon by any other person.
6. TERM AND SOFTWARE TERM
6.1 This Agreement commences on the Commencement Date and continues:
6.1.1 in relation to the Services, until the end of the Term; and
6.1.2 in relation to the Software Licence, until the end of the Software Term,
unless otherwise terminated earlier in accordance with this Agreement.
6.2 At the end of the Term or Software Term (as the case may be), the parties may, by agreement, extend the Agreement for such further period of time as they consider appropriate.
6.3 If at the end of the Term or Software Term (as the case may be), the parties do not agree to extend this Agreement for a further term in accordance with clause 6.2 but Simple.space continues to provide Services or Software to the Client, then this Agreement continues until either party provides not less than one month’s written notice to the other party that it wishes to terminate this Agreement or the Agreement is otherwise terminated earlier in accordance with this Agreement.
7. FEES
7.1 The fees payable for the Services and Software and any expenses incurred by Simple.space (which are to be reimbursed by the Client) are set out in the Statement of Work, or as otherwise agreed in writing between the parties from time to time (“Fees”). Simple.space may reasonably vary its Fees by providing no less than 30 days’ notice in writing to the Client.
7.2 Simple.space will render invoices for the Fees on a monthly basis unless otherwise specified in the Statement of Work, or as agreed in writing between the parties. Invoices are payable by the Client within 14 days from the date of the invoice (“Payment Terms”).
7.3 If the Client fails to pay the Fees to Simple.space in accordance with the Payment Terms, the Client is liable to pay Simple.space:
7.3.1 interest at the interest rate set out under the Penalty Interest Rate Act 1983 (Vic) from time to time, calculated daily, on all outstanding amounts from the date upon which payment was due until payment is received by Simple.space in full; and
7.3.2 all reasonable costs and expenses incurred by Simple.space (including legal costs on a full indemnity basis) in relation to the recovery of the Fees and interest from the Client.
8. WARRANTIES
8.1 Each party represents and warrants to the other that:
8.1.1 it is a body corporate duly incorporated under the laws of the place of its incorporation;
8.1.2 it has the power and has taken all corporate and other action required to enter into this Agreement and to authorise the execution and delivery of this Agreement and the performance of its obligations under the Agreement;
8.1.3 the execution, delivery and performance of this Agreement does not violate any existing law or any document or agreement to which it is a party or which is binding on it or any of its assets; and
8.1.4 this Agreement constitutes a valid and legally binding obligation of it in accordance with its terms.
8.2 The Client warrants that it has not relied on any representation made by Simple.space or its Personnel, which has not been expressly stated in this Agreement.
9. EXCLUSION LIABILITY
9.1 Except only for rights which the Client has under this Agreement, the Competition and Consumer Act 2010 and other applicable laws and which cannot be lawfully excluded, restricted, modified or limited, the Client agrees that all conditions or warranties in relation to the provision of the Services and Software are excluded.
9.2 Where Simple.space is not permitted under any applicable law to exclude, restrict or modify any condition or warranty, Simple.space’s liability is limited to any one of the following as determined by Simple.space:
9.2.1 the supplying of the Services and Software again; or
9.2.2 the payment of the cost of the Client having the Services and Software supplied again.
9.3 Notwithstanding any other provision of this Agreement, Simple.space disclaims all loss, damage, cost or liability, whether in contract, tort, pursuant to statute or otherwise, in connection with the supply of the Services, or the access to or use of the Software, or from the termination of such access or use pursuant to this Agreement, and the Client releases and forever discharges Simple.space and its Personnel from all such loss, damage, cost or liability in respect thereof. Such disclaimer applies to any direct, indirect, special or consequential loss, including but not limited to: loss of profit, business revenue or goodwill; loss or corruption of data and the restoration thereof; loss of operations through system failure or downtime; or failure-to achieve the benefits or cost savings anticipated.
9.4 Simple.space has used its best endeavours to develop and create Software that is stable and reliable, however, Simple.space does not warrant that the Software will be compatible with every computer and every operating environment. It is the Client’s responsibility to ascertain whether the Software is compatible with its computer and operating environment.
9.5 The Software is licensed “as is” and without warranties as to performance, merchantability or fitness for purpose.
9.6 Simple.space disclaims all liability for errors and omissions arising from the Client’s access to or use of the Software. Simple.space further disclaims all liability for errors or omissions in, or the corruption of, data provided, entered or exchanged. The Client agrees to use the Software entirely at its own risk. The Client indemnifies Simple.space against any loss, damages, costs, and liability that may result from Client’s access to or use of the Software.
9.7 Simple.space accepts no liability for security breaches beyond its reasonable control, including without limitation, security breaches resulting from computer hackers, unlawful entry, unauthorised entry, theft, disgruntled employees and other fraudulent acts.
9.8 The Software may contain links to web sites and/or software operated by third parties. Simple.space does not endorse, or approve of the operators of such third parties or the information, graphics, software, and material on such sites. Simple.space does not make any warranties or representations regarding the quality, fitness for purpose, accuracy or merchantability of products, services or software available from such third parties.
9.9 If, notwithstanding the foregoing, Simple.space is held liable under this Agreement, its total liability in connection with the Services, Software or this Agreement shall not exceed the lesser of $1,000 or the amount of fees paid by the Client for the particular service or product provided by Simple.space relating directly to the liability.
10. INDEMNITY
10.1 The Client indemnifies and keeps indemnified Simple.space and its Personnel from and against all loss, damage, cost or liability suffered or incurred by Simple.space, its Personnel or any third party in connection with:
10.1.1 the access to or use of the Services or Software;
10.1.2 a breach by the Client of any of the terms and conditions contained in this Agreement; and
10.1.3 any acts or omissions by the Client or its Personnel.
10.2 The indemnity in this clause 10 is for the benefit of Simple.space and its Personnel. Each of these individuals or entities shall have the right to assert and enforce these provisions directly against the Client on its own behalf.
11. RECORDS AND AUDITS
11.1 Simple.space will keep proper accounts, records and timesheets in accordance with current Australian accounting principles in respect of fees, charges, billing, and expenses payable under this Agreement and warrants that such data, information and records relating to this Agreement or its performance are maintained in such a form and manner as to facilitate access and inspection under this clause.
11.2 Within 10 days of any reasonable request by the Client, or earlier should the need be urgent and reasonably explained to Simple.space, Simple.space will give the Client access to, or provide copies of, any information the Client may reasonably require to allow any fees, charges, billings or expenses to be verified by the Client.
12. INDEPENDENT CONTRACTOR
12.1 Simple.space provides the Services and Software in the capacity of independent contractor only.
12.2 This Agreement does not create any partnership, joint venture, employment or agency relationship between the parties.
12.3 Neither party may enter into any agreements or incur any liabilities on behalf of the other party without the other party’s prior written consent and may not represent to any party that it has the authority to do so.
12.4 Simple.space is entitled to treat the Client’s Personnel as having actual authority to provide instructions to Simple.space without making further enquiry.
13. INTELLECTUAL PROPERTY AND CONFIDENTIAL INFORMATION
13.1 All Intellectual Property belonging to:
13.1.1 the Client as at the Commencement Date, remain the sole and absolute property of the Client; and
13.1.2 Simple.space as at the Commencement Date, and all Intellectual Property and Software developed or created by Simple.space after the Commencement Date in relation to this Agreement, remain the sole and absolute property of Simple.space.
13.2 Simple.space acknowledges that all Intellectual Property in the Client Materials remain the sole and absolute property of Client.
13.3 Notwithstanding any other provision of this Agreement, Simple.space does not warrant:
13.3.1 the accuracy, completeness, reliability or currency,
13.3.2 the ownership of any Intellectual Property; or
13.3.3 the ability of the Client to use,
any material of a third party that may be referred to or incorporated in the Services or Software.
13.4 Each party agrees to:
13.4.1 keep the Confidential Information of the other party confidential; and
13.4.2 not disclose such Confidential Information to a third party without the prior written consent of the other party, except as required by law,
13.5 The parties acknowledge that the obligation to maintain confidentiality under clause 13.4 will survive termination of this Agreement.
14. PRIVACY AND PROTECTION OF CLIENT DATA
Each party must comply with the Privacy Act 1988 (Cth) in respect of any Personal Information to which it obtains access as a result of its performance of this Agreement.
15. NON-SOLICITATION
During this Agreement and for a period of 12 months after termination, the parties agree that they will not approach, seek to employ or employ, in any capacity whatsoever, any officer, employee, subcontractor or consultant of the other party. The parties acknowledge and agree that the restraint set out in this clause is reasonable.
16. MARKETING MATERIAL
The Client agrees that Simple.space may use the Client’s name, logo, and a brief description of the Services and Software provided to the Client in any marketing materials published by Simple.space.
17. TERMINATION
17.1 This Agreement will terminate at the end of the Term or Software Term (as the case may be) unless:
17.1.1 the Agreement is renewed or extended in accordance with clause 6; or
17.1.2 the Agreement is terminated earlier pursuant to clause 17.2.
- 2 Either party may terminate this Agreement immediately if:
17.2.1 the other party (“Defaulting Party”) breaches this Agreement and the breach:
a) is not capable of being remedied; or
b) is capable of being remedied and the Defaulting Party does not remedy it within 14 days of being notified to do so; or
17.2.2 the other party suffers an Insolvency Event.
17.3 On termination of this Agreement:
17.3.1 the Client must immediately pay Simple.space all amounts owing pursuant to this Agreement;
17.3.2 Simple.space will return the Client Materials to the Client;
17.3.3 the Client must cease accessing and/or using the Software; and
17.3.4 both parties must return any Confidential Information and Intellectual Property belonging to the other party.
18. GST
18.1 Expressions set out in italics in clauses 18.2 to 18.4 bear the same meaning as those expressions in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) and the related imposition Acts of the Commonwealth.
18.2 To the extent that a party makes a taxable supply under or in connection with this Agreement, except where express provision is made to the contrary, the consideration payable by a party under or in connection with this Agreement represents the value of the taxable supply for which payment is to be made and on which GST is to be calculated.
18.3 If a party makes a taxable supply under or in connection with this Agreement for a consideration which, under clause 18.2, represents its value, then the party liable to pay for the taxable supply must also pay at the same time and in the same manner as the value is otherwise payable, the amount of any GST payable in respect of the taxable supply.
18.4 Upon receipt of the consideration and GST payable, a valid tax invoice will be delivered to the party which paid that sum within 7 days of payment.
19. DISPUTE RESOLUTION
19.1 A party must not start arbitration or court proceedings (except proceedings seeking injunctive, declaratory or interlocutory relief) in respect of a dispute arising out of this Agreement (“Dispute”) unless it has complied with this clause 19.
19.2 A party claiming that a Dispute has arisen must notify the other party giving details of the Dispute and its proposal for a resolution.
19.3 Within 14 days after a notice is given under clause 19.2 (“Initial Period”) each Disputant must use all reasonable endeavours to resolve the Dispute and an Authorised Officer of each Disputant will meet within the Initial Period for that purpose.
19.4 If the parties cannot resolve the Dispute themselves within 30 days after the Initial Period, the Dispute must be referred for mediation. The parties are to agree on the mediator and if they cannot agree, the mediator is to be nominated by the then current President of the Law Institute of Victoria, Australia (or the President’s nominee). The role of the mediator is to assist in negotiating a resolution of the Dispute and the mediator may not make a decision that is binding on a party unless that party has agreed in writing. Unless otherwise agreed by the parties, any mediation is to take place in Melbourne, Australia.
19.5 Any information or documents disclosed by a party under this clause 19 must be kept confidential and may not be used except to attempt to resolve the Dispute.
19.6 Each party must bear its own costs of complying with this clause 19 and the parties must bear equally the costs of any mediator engaged.
20. NOTICES AND OTHER COMMUNICATIONS
20.1 Unless expressly stated otherwise in this Agreement, all notices, certificates, consents, approvals and other communications in connection with this Agreement must be:
20.1.1 in writing;
20.1.2 in English; and
20.1.3 signed by the sender (if an individual) or an Authorised Officer of the sender (communications sent by email are taken to be signed by the named sender).
20.2 Address for notice
Unless and until a party provides notice of a different address, email or facsimile number to the other parties to this Agreement, its address for service of notices shall be as set out in the Statement of Work.
20.3 Delivery Communications must be:
20.3.1 left at the address set out or referred to in clause 20.2; or
20.3.2 sent by prepaid ordinary post (airmail if appropriate) to the address set out or referred to in clause 20.2; or
20.3.3 sent by email to the address set out or referred to in clause 20.2; or
20,3.4 given in any other way permitted by law,
however, if the intended recipient has notified a changed address, fax number or email address, then communications must be to that address, fax number or email address.
20.4 Communications are taken to be received:
20.4.1 if sent by post, three days after posting (or seven days after posting if sent from one country to another); or
20.4.2 if sent by email:
a) when the sender receives an automated message confirming delivery; or
b) four hours after the time sent (as recorded on the device from which the sender sent the email) unless the sender receives an automated message that the email has not been delivered,
whichever happens first.
20.5 If communications are received or taken to be received under clause 20.4 after 5.00pm in the place of receipt or a non-Business Day, they are taken to be received at 9.00am on the next Business Day and take effect from that time unless a later time is specified.
21. GENERAL
21.1 Amendment
This Agreement (incorporating the Statement of Work) may only be amended by a document duly executed by the parties.
21.2 Assignment
No party may assign or encumber or attempt to assign or encumber any right or interest under this Agreement without the prior written consent of the other parties.
21.3 Entire Understanding
This Agreement contains the entire understanding between the parties concerning its subject matter and supersedes all previous agreements, understandings and negotiations on that subject matter.
21.4 Further Assurance
Each party must at all times and from time to time at its own expense do all further acts and execute and deliver all further deeds, documents and instruments necessary or desirable in order to fully perform and give effect to and carry out the terms of this Agreement.
21.5 Governing Law
This Agreement is governed by the laws in force in Victoria. Each party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts of Victoria and any courts having jurisdiction to hear appeals from those courts.
21.6 Remedies Cumulative
The rights, powers and remedies provided in this Agreement are cumulative with and not exclusive of the rights, powers or remedies provided by law.
21.7 Legal Costs
Each party must bear and is responsible for its own legal and other costs and expenses in connection with the negotiation, preparation and execution of this Agreement and all related documentation.
21.8 Severability
Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction is ineffective to the extent of the prohibition or unenforceability. That does not invalidate the remaining provisions of this Agreement nor affect the validity or enforceability of that provision in any other jurisdiction.
21.9 Waiver and exercise of rights
In this Agreement:
21.9.1 a single or partial exercise or waiver of a right relating to this Agreement does not prevent any other exercise of that right or the exercise of any other right;
21.9.2 no party is liable for any loss or expense of another party caused or partly caused by the waiver, exercise or failure to exercise a right;
21.9.3 waiver of any right, power, authority, discretion or remedy arising upon a breach of or default under this Agreement must be in writing and signed by the party granting the waiver;
21.9.4 this clause may not itself be waived except in writing.
21.10 Warranty
The persons who execute this Agreement warrant that they are authorised to execute this Agreement and bind the party on behalf of which they have signed the Agreement.
