Last updated: 21st October 2021
Terms and Conditions
1. Definitions and Interpretation
The definitions and interpretation rules that apply to this agreement are set out in clause 23 (Definitions and interpretation).
(a) The Special Conditions (if any) will apply to, and are incorporated into, this agreement.
(b) The Special Conditions will prevail to the extent there is an inconsistency between the Special Conditions and these Terms and Conditions.
(a) This agreement will commence on the Commencement Date and continue for the Initial Term (unless terminated earlier).
(b) If Renewal Periods are specified, then this agreement will continue in accordance with Item 3.
(a) Subject to the Customer purchasing User Subscriptions in accordance with clause 5 and clause 9, the restrictions set out in this clause 4 and the other terms and conditions of this agreement, the Supplier hereby grants to the Customer a non-exclusive, non-transferable right to permit its Authorised Users to use the Hybrid Workforce Platform during the term of this Agreement solely for the Customer’s internal business operations.
(b) In relation to the Authorised Users, the Customer undertakes that:
(i) it will not use the Hybrid Workforce Platform for any purpose or in any manner other than set out in clause 4(a);
(ii) it will not permit any third party, other than An Authorised User, to use or access the Hybrid Workforce Platform other than in the normal process of using the Hybrid Workforce Platform solely for the Customer’s internal business operations;
(iii) the maximum number of Authorised Users that it authorises to access and use the Hybrid Workforce Platform shall not exceed the number of User Subscriptions it has purchased from time to time;
(iv) it will not allow or suffer any User Subscription to be used by more than one individual Authorised User unless it has been reassigned in its entirety to another individual Authorised User, in which case the prior Authorised User shall no longer have any right to access or use the Hybrid Workforce Platform.
(c) The rights granted under clause 4(a) are granted to the Customer only, and shall not be considered granted to any subsidiary or holding company of the Customer, unless prior written consent shall be obtained from the Supplier, which consent shall not unreasonably be withheld.
5. Additional User Subscriptions
(a) Subject to clause 5(b), the Customer may, from time to time during the term of this agreement, purchase additional User Subscriptions and the Supplier may grant access to the Hybrid Workforce Platform to such additional Authorised Users of the Customer in accordance with the provisions of this agreement.
(b) If the Customer wishes to purchase additional User Subscriptions, the Customer shall notify the Supplier in writing of the number of additional User Subscriptions sought. The Supplier shall reasonably evaluate any request for additional User Subscriptions and respond to the Customer with approval or disapproval of the request, and advise the Customer of any additional fees then payable.
(a) Subject to this agreement, the Supplier will provide the Customer with:
(i) access to the Hybrid Workforce Platform; and
(ii) the Set Up Services.
(b) The Customer agrees that it may only acquire and make use of the Services for the sole purpose of the internal business needs of its business.
(c) Other than for the Supplier’s obligation to provide the Customer with access to the Hybrid Workforce Platform as part of the Services, if any consents (which may include, without limitation, consents for Supplier to access use, store and disclose Customer Data) are required for the Supplier to provide the Services, the Customer must procure those consents for the Supplier. The Supplier’s obligations to provide the Services are conditional on those consents having been procured. The Customer will comply with the Supplier’s reasonable requests for confirmation of this.
(d) The Supplier may configure its system and determine the nature and manner of its internal technical support at its discretion. The Customer agrees to comply with such access and use procedures (including as to communications and security) as the Supplier notifies the Customer from time to time.
(e) Other than as expressly permitted by this agreement, the Customer will not do or permit anything to be done in respect of the Hybrid Workforce Platform or the Services. Without limiting the preceding sentence, the Customer will not:
(i) remove or modify any Hybrid Workforce Platform markings or any notice of Supplier’s rights;
(ii) make programs or materials resulting from the Services available to any third party for use in the third party’s business;
(iii) commercially exploit the Services or the Hybrid Workforce Platform (including by making it available to any third party); and
(iv) distribute or transmit any part of the Services by any means.
(f) The Customer will use reasonable efforts to prevent unauthorised third parties from accessing the Services and, in the event of any such unauthorised access or use, promptly notify the Supplier.
(g) The Customer shall indemnify the Supplier for all damages directly suffered in relation to any breach which arises from clause 5(f).
(h) The Customer agrees that the access rights of any individual user permitted to use the Services (for example on a named or password-enabled basis) cannot be shared or used by more than one individual, unless the right is reassigned in its entirety to another individual authorised user in which case the first user will no longer have any right to access all or any part of the Services.
(i) The Customer agrees not to make or permit any use of the Services in a way which is unacceptable. Use is unacceptable if:
(i) it involves anything which is false, defamatory, harassing or obscene;
(ii) it involves unsolicited electronic messages;
(iii) it would involve the contravention of any person’s rights (including intellectual property rights);
(iv) it may offend any laws; or
(v) it may otherwise be regarded by Supplier, on reasonable grounds, to be unacceptable (Supplier may from time to time notify Customer of the circumstances which Supplier regards as unacceptable).
(j) Customer agrees that Supplier may immediately suspend all or any part of the Services, and remove or disable access to anything that contravenes those restrictions or is otherwise in breach of this agreement.
(k) The Supplier warrants that it has and will maintain all necessary licenses, consent, and permissions necessary for the performance of its obligations under this agreement.
Subject to the terms of this agreement, during the term of this agreement the Supplier will provide the Support to the Customer.
(a) The Services to be provided under this agreement will not include the Exclusions.
(b) The Supplier may agree to provide, on a written request from the Customer, the Exclusions. In this event, the Supplier will be entitled to charge an Additional Fee.
(a) The Customer will pay the Fees and any Additional Fees at the rate and in the manner specified in the Agreement Details.
(b) The Customer will pay the Supplier such Additional Fees as Supplier invoices from time to time for the supply of goods or services not expressly required by this agreement or (without limiting the Supplier’s remedies at law) which were either required by Customer or incurred by Supplier as a result of carrying out any works which were reasonably appropriate in connection with Customer’s non-performance of this agreement.
(c) The Customer must not:
(i) claim any right of set-off or counterclaim in respect of any payment the Customer is to pay the Supplier under this agreement; or
(ii) raise any defence in relation to any Claim the Supplier makes to enforce its rights under this agreement.
(d) The Customer will pay the Supplier interest on any amount due and not paid by Customer within the time required by this agreement at the rate of interest specified in the Agreement Details.
10. Compliance with law
(a) The Supplier is not liable to the Customer under this agreement or otherwise if and to the extent the Customer’s access to or use of any Services is contrary to any obligations, including those owed under contract or any laws.
(b) The Supplier may (but is not bound to) make Customer Data and any other information (in any form) relevant to the Customer’s relationship with the Supplier under this agreement available to any person who provides reasonable evidence to the Supplier of their right to this, including a law enforcement officer, a person representing any professional or industry standards organisation and representatives of any person to whom Customer Data pertains.
(c) The Customer will indemnify Supplier against any Loss or Claim against the Supplier in relation to:
(i) The Supplier’s collection, use, disclosure, storage or other involvement with Customer Data and any other information (in any form) relevant to Customer’s relationship with Supplier under this agreement; and
(ii) acting in accordance with clause 10(b).
11. Data and access
(a) The Supplier will, on reasonable notice, make Customer Data and related data, documentation or records maintained on behalf of the Customer available for inspection by the Customer or the Customer’s auditors (if any).
(b) The Customer agrees to pay any Additional Fee invoiced by the Supplier in respect of the services provided pursuant to clause 11(a).
(c) The Customer agrees that it has sole responsibility for the accuracy, quality, integrity, legal compliance, reliability, appropriateness and rights ownership in all Customer Data. The Customer also agrees that there are limitations to the Hybrid Workforce Platform’s and Services’ ability to assist in the Customer’s business. The Customer agrees that the Hybrid Workforce Platform and the Services do not detect faulty or aberrant input data, do not take into account all of the matters that should be considered in decision making regarding matters of relevance to Customer’s business and should not be used as a substitute for Customer’s independent and appropriately qualified decisions regarding matters of relevance to Customer’s business. Customer warrants that it will not make or permit any access to or use of the Hybrid Workforce Platform or Services unless it has in place appropriate strategies, in addition to (and not reliant on) its use of the Hybrid Workforce Platform and Services to manage all risks attendance on its business.
(d) Customer will be responsible for providing its own Customer Access Facilities.
(e) Customer warrants and will ensure that all Customer Access Facilities meet the security standards required by Supplier from time to time and are and will remain free from any circumstances (including viruses) which may adversely affect Supplier, the Hybrid Workforce Platform or the Services and are otherwise reasonably appropriate for use in conjunction with the Services.
(f) Subject to clause 13 (Confidentiality), the Supplier owns all rights, including intellectual property rights, in anything developed or delivered under this agreement.
(g) Third party facilities, including software programs, may be necessary or appropriate for access to or use with the Hybrid Workforce Platform. Customer agrees that its right to make any use of such facilities is governed by the terms of the relevant third party licence/services agreement and not by this agreement.
12. Data protection and privacy
(b) The Supplier’s privacy terms are subject to change from time to time, provided that any such change will not materially reduce the level of privacy protection for Customer Data during the period for which any Fees have been paid.
(c) The Supplier may provide the Services from any locations, and/or through the use of contractors, worldwide.
(d) Without limiting clause 6(c) or clause 10(a), Customer agrees to provide any information, and to obtain any consents, relevant to its use of the Services and Hybrid Workforce Platform, including those in relation to the collection, use, disclosure and storage of Personal Information of any individual whose Personal Information may be included in Customer Data.
(e) Clause 12(d) does not limit Supplier’s use of Deposited Data for the purposes of research and development.
(f) The Customer agrees that it will do all things reasonably appropriate and requested by Supplier in support of Customer’s role as the Customer Data controller and Supplier’s role as Customer Data processor under this agreement, and without limiting clause Error! Reference source not found., Customer will be solely liable to comply with all laws as regards Customer Data, including those requiring:
(i) issuing notices to data subjects;
(ii) granting access to Customer Data;
(iii) communications (including notifications and filings) to data processing authorities; and
(iv) compliance with data retention and deletion requirements,
subject always to such steps as are reasonable to preserve Supplier’s interests under this agreement.
(g) Clause 12(f) does not limit Supplier’s access to Customer Data to carry out maintenance and support in respect of the application and systems relevant to the application. Supplier will endeavour to give Customer advance notice of any scheduled maintenance and support service which may interrupt Customer’s access to Customer Data.
(a) A party will not, without the prior written approval of the other party, disclose the other party’s Confidential Information.
(b) A party will not be in breach of clause 12(a) for any uses or disclosures of Confidential Information which:
(i) are required by law;
(ii) are to related companies, advisers, contractors, auditors or insurers; or
(iii) have become public knowledge other than through its wrongful act or omission.
(c) This clause 13 survives the completion or termination of this agreement.
14. Intellectual property rights
(a) Nothing in this agreement constitutes a transfer of any Intellectual Property Rights from the Supplier to the Customer. Except as expressly stated herein, this agreement does not grant the Customer any Intellectual Property Rights or any other rights or licences in respect of the Hybrid Workforce Platform.
(b) The Customer:
(i) acknowledges that the Supplier owns all Intellectual Property Rights in the Hybrid Workforce Platform; and
(ii) undertakes that it will not directly or indirectly do anything that would or might invalidate or put in dispute the Supplier’s title or interests in the Hybrid Workforce Platform.
(c) This clause 14 survives the completion or termination of this agreement.
15. General exclusion and operation of laws
(a) Nothing in this agreement excludes, restricts or modifies any condition, warranty, right or liability implied in this agreement or protected by law to the extent that such exclusion, restriction or modification would render this agreement or any provision of this agreement void, illegal or unenforceable. Subject to that, any condition, warranty, right or liability which would otherwise be implied in this agreement or protected by law is excluded.
(b) The Customer acknowledges and agrees that:
(i) prior to entering into this agreement, it has been given a reasonable opportunity to examine and satisfy itself regarding all goods and services which are the subject of this agreement and that prior to entering into this agreement it has availed itself of that opportunity;
(ii) at no time prior to entering into this agreement has it relied on the skill or judgment of the Supplier and that it would be unreasonable for the Customer to rely on any such skill or judgment; and
(iii) where any acquisition of goods under this agreement has been made by reference to a sample or demonstration model, prior to entering into this agreement the Customer has been given a reasonable opportunity:
(A) to satisfy itself that the goods correspond with the sample or demonstration model as to quality, state and condition; and
(B) to examine the sample or demonstration model for any apparent defects, and that it has availed itself of that opportunity.
(c) Pursuant to section 64A of the Australian Consumer Law:
(i) this clause 15(c)(i) applies in respect of any of the goods or services supplied under this agreement which are not of a kind ordinarily acquired for personal, domestic or household use or consumption, provided that this clause 15(c)(i) will not apply if the Customer establishes that reliance on it would not be fair and reasonable;
(ii) liability for breach of a guarantee conferred by the Australian Consumer Law, other than those conferred by sections 51 – 53 of that law, is limited:
(A) in the case of goods, to any one of the following as determined by the Supplier:
(1) the replacement of the goods or the supply of equivalent goods; or
(2) the repair of the goods; or
(3) the payment of the cost of replacing the goods or of acquiring equivalent goods; or
(4) the payment of the cost of having the goods repaired;
(B) in the case of services, to any one of the following as determined by the Supplier:
(1) the supplying of the services again; or
(2) the payment of the cost of having the services supplied again.
16. Liability of Supplier
(a) Except in relation to:
(i) liability for personal injury or death;
(ii) liability referred to in clause 15 (General exclusion and operation of laws); or
(iii) liability for the Supplier’s breach of this agreement (which Customer agrees will be limited, for all claims in aggregate, to paying an amount equal to the Fees paid by Customer applicable to the period in which the first claimed breach occurred, or if this agreement has been in place for more than one year, the amount paid by the Customer to the Supplier over the previous one-year period),
the Supplier will be under no liability to Customer in respect of any loss or damage (including loss of profits, loss of goodwill, loss of data and any special, indirect or consequential loss or damage) which may be suffered or incurred or which may arise directly or indirectly in any way in connection with this agreement (including in respect of goods or services supplied pursuant to this agreement).
(b) Without limiting the following sentence, the Customer warrants that it has not relied on any representation made by the Supplier which has not been stated expressly in this agreement, or upon any descriptions, illustrations or specifications in any way relating to the Services including catalogues, website or publicity material produced by Supplier. Customer acknowledges that to the extent Supplier has made any representation which is not otherwise expressly stated in this agreement, Customer has been provided with an opportunity to independently verify the accuracy of that representation.
(c) Customer will at all times indemnify Supplier and its officers, employees, contractors and agents (Those Indemnified) against any Loss or Claim against Those Indemnified where such loss or liability was caused by a breach by the Customer of its obligations under this agreement or any wilful, unlawful or negligent act or omission of the Customer.
(d) In respect of any claim between the parties under or in connection with this agreement, the parties agree that to the maximum extent permitted by law, this agreement excludes the operation of any laws which would apportion any liability to the Supplier which would not have been so apportioned but for such laws.
(a) Without limiting the generality of any other clause in this agreement, the Supplier may terminate this agreement or suspend performance of its obligations under this agreement (for such period as Supplier specified) by giving the Customer seven (7) business days’ notice in writing.
(b) The Supplier may terminate this agreement immediately by notice in writing if:
(i) the Customer is in breach of any term of this agreement and such breach is not remedied within seven days of Supplier notifying the Customer;
(ii) the Customer suffers an Insolvency Event;
(iii) the Customer, being a partnership, dissolves, threatens or resolves to dissolve or is in jeopardy of dissolving;
(iv) the Customer, being a natural person, dies; or
(v) the Customer ceases or threatens to cease conducting its business in the normal manner.
(c) If any of the circumstances referred to in clauses 17(a) and 17(b)(i) – 17(b)(v) occur, the Customer will, if requested by the Supplier, comply with the Supplier’s requirement for Supplier (in addition to terminating this agreement) to:
(i) repossess any of its property in the possession, custody or control of Customer;
(ii) retain any moneys paid;
(iii) charge a reasonable sum for work performed in respect of which work, no sum has been previously charged;
(iv) be regarded as discharged from any further obligations under this agreement; and
(v) except where the Supplier terminates the agreement pursuant to clause 17(a):
(A) recover the balance of the Fees and any Additional Fees payable over the residual Initial Term or the residual Renewal Period (as applicable) to be invoiced monthly over the residual term of this Agreement;
(B) the Supplier will retain any Fees paid in advance including any Fees paid annually; and
(C) pursue any additional or alternative remedies provided by law against the Customer.
(d) The Customer agrees that on expiry or termination of this agreement for any reason, all of its rights in respect of the Services (including its right to access the Hybrid Workforce Platform) will end.
(e) If the Customer requests, and subject to the Customer having discharged all of its obligations under this agreement, the Supplier will, within one month after termination or expiry of this agreement, provide Customer with a file containing Customer Data.
(f) Customer agrees and acknowledges that Supplier has no obligation to retain any information relating to Customer (including Customer Data) and that all such information may be irretrievably deleted by Supplier after one month from the date of any suspension, termination or expiry of this agreement.
18. Force majeure
(a) Supplier will not be liable for any delay or failure to perform its obligations under this agreement if such delay is due to Force Majeure. If a delay or failure is caused or anticipated due to Force Majeure, Supplier’s obligations will be suspended. If a delay or failure by Supplier to perform its obligations due to Force Majeure exceeds 60 days, Supplier may immediately terminate the agreement on providing notice in writing to Customer.
(b) If this agreement is terminated pursuant to clause 18(a), Supplier is not liable to refund any moneys paid by Customer pursuant to this agreement.
(a) A party claiming that a dispute has arisen in relation to this agreement (Dispute) must give a written notice specifying the nature of the Dispute (Dispute Notice) to the other party.
(b) A party must not commence court proceedings other than for urgent interlocutory relief, unless that party has adhered to the dispute resolution options in this Clause 19.
(i) The parties agree to endeavour to settle any Dispute or claim in relation to this agreement by direct negotiations in good faith between the parties.
(ii) If the parties fail to resolve the Dispute by direct negotiations, the parties commit to independent mediation.
(i) If the parties fail to resolve their Dispute under clause 19(c), the parties shall endeavour to settle any Dispute arising out of or in relation to this agreement, including with regard to its existence, validity or termination, by mediation administered by the Australian Disputes Centre (ADC) before having recourse to binding expert determination.
(ii) The mediation shall be conducted in accordance with the ADC guidelines for Commercial Mediation operating at the time the matter is referred to the ADC (the Guidelines).
(iii) The terms of the Guidelines are hereby deemed incorporated into this agreement.
(iv) If a party refuses to participate in a mediation of the Dispute, then, that party is not entitled to recover its costs in any court proceedings or expert determination proceedings relating to the Dispute, even if that party is successful.
(v) If the parties fail to resolve the Dispute by mediation, the parties commit to binding expert determination.
(e) Expert determination (binding)
(i) Any Dispute, controversy or claim arising out of, relating to or in connection with this Agreement, including any question regarding its existence, validity or termination shall be settled by binding expert determination administered by the Australian Disputes Centre (ADC).
(ii) The expert determination shall be conducted the ADC Sydney venue in accordance with the ADC Rules for Expert Determination operating at the time (the Rules).
(iii) The terms of the Rules are hereby deemed incorporated into this agreement.
(iv) The parties agree to accept the expert determination as binding.
(f) This clause 19 survives the completion or termination of this agreement.
(a) Words and expressions defined in the GST Law have the same meaning in this clause 20.
(b) If a party makes a taxable supply to another party under or in connection with this agreement, then (unless the Fee or any other payment under this agreement is expressly stated to be inclusive of GST) the consideration for that supply is exclusive of GST, and in addition to paying or providing that consideration the recipient is to:
(i) pay to the supplier an amount equal to any GST for which the supplier is liable on that supply, without deduction or set-off of any other amount; and
(ii) make that payment as and when the consideration or part of it is to be paid or provided, except that the recipient need not pay unless the recipient has received a tax invoice (or an adjustment note) for that supply.
(c) If a party provides payment for or any satisfaction of a claim or a right to claim under or in connection with this agreement (for example, for a breach of any warranty or for reimbursement of any expense) that gives rise to a liability for GST, the provider is to pay, and indemnify the claimant against, the amount of that GST.
(d) If a party has a claim under or in connection with this agreement for a cost on which that party is to pay an amount for GST, the claim is for the cost plus all amounts for GST (except any amount for GST for which that party is entitled to an input tax credit).
(e) If a party has a claim under or in connection with this agreement whose amount depends on actual or estimated revenue or which is for a loss of revenue, revenue is to be calculated without including any amount received or receivable as reimbursement for GST (whether that amount is separate or included as part of a larger amount).
A notice, demand, certification, process or other communication relating to this agreement must be in writing in English and may be given by an agent of the sender.
21.2 How to give a communication
In addition to any other lawful means, a communication may be given by being:
(a) personally delivered;
(b) left at the party’s current delivery address for notices;
(c) sent to the party’s current postal address for notices by pre-paid ordinary mail or, if the address is outside Australia, by pre-paid airmail; or
(d) sent by email to the party’s current email address for notices, in which case the communication must be in pdf or other format that is a scanned image of the original of the communication, including a handwritten signature, and be attached to an email that states that the attachment is a communication under this agreement.
21.3 Particulars for delivery of notices
The particulars for delivery of notices for each Party are set out in the Agreement Details.
21.4 When communication is given
Subject to clause 21.5, a communication is given:
(a) if posted:
(i) within Australia to an Australian postal address, six Business Days after posting; or
(ii) outside of Australia to an Australian postal address or within Australia to an address outside of Australia, 10 Business Days after posting;
(b) if sent by email, 1 hour after the email was sent, unless the party sending the email knows or reasonably ought to suspect that the email and the attached communication were not delivered to the addressee’s domain specified in the email address notified for the purposes of this clause 21.
21.5 After hours communications
If a communication is given:
(a) after 5.00 pm in the place of receipt; or
(b) on a day which is a Saturday, Sunday or bank or public holiday in the place of receipt,
it is taken as having been given at 9.00 am on the next day which is not a Saturday, Sunday or bank or public holiday in that place.
21.6 Additional clauses
A notice sent or delivered in a manner provided by clause 21.4 must be treated as validly given to and received by the party to which it is addressed even if:
(a) the addressee has suffered an Insolvency Event, is deregistered or absent from the place at which the notice is delivered or to which it is sent; or
(b) if the notice is returned unclaimed.
This agreement may only be varied by a further written agreement or instrument signed by or on behalf of each of the parties.
22.2 Assignment and novation
The benefit of this agreement will not be assigned by the Customer without the Supplier’s written consent. A change in control of or affecting the Customer will be deemed to be an assignment, with “control” referring to the power to materially influence the Customer’s decision making or policies.
Each person who executes this agreement on behalf of a party under a power of attorney declares that he is not aware of any fact or circumstance that might affect his authority to do so under that power of attorney.
Unless this agreement expressly states otherwise, a party may in its absolute discretion, give conditionally or unconditionally or withhold, any consent under this agreement. To be effective, any consent under this agreement is to be in writing.
Except to the extent otherwise stated in this agreement, each party is to bear and is responsible for its own costs in connection with the preparation, execution, completion and carrying into effect of this agreement.
Once executed, this agreement may be exchanged, in original form or by email, and in any number of counterparts each of which will be considered to constitute the same instrument.
22.7 Entire agreement
This agreement contains the entire agreement between the parties about its subject matter. Any previous understanding, agreement, representation or warranty relating to that subject matter is replaced by this agreement and has no further effect.
22.8 Further acts
Each party will promptly do all further acts and execute and deliver all further agreements required by law or reasonably requested by another party to give effect to this agreement.
(a) This agreement is governed by the law in force in the Jurisdiction.
(b) Each party submits to the non-exclusive jurisdiction of the courts of the Jurisdiction and the courts competent to determine appeals from those courts, in relation to any proceedings that may be brought at any time relating to this agreement.
(c) Each party irrevocably waives any objection it may have now or in the future to the venue of any proceedings where that venue falls within the Jurisdiction.
22.10 No Merger
No right or obligation of any party will merge on completion of any transaction contemplated by this agreement.
Any provision of this agreement that is illegal, void or unenforceable is to be severed without prejudice to the balance of the provisions of this agreement which will remain in force.
(a) Failure to exercise or enforce or a delay in exercising or enforcing or the partial exercise or enforcement of any right, power or remedy provided by law or under this agreement by any party will not in any way preclude, or operate as a waiver of, any exercise or enforcement, or further exercise or enforcement of that or any other right, power or remedy provided by law or under this agreement.
(b) Any waiver or consent given by any party under this agreement will only be effective and binding on that party if it is given or confirmed in writing by that party.
(c) No waiver of a breach of any term of this agreement will operate as a waiver of another breach of that term or of a breach of any other term of this agreement.
23. Definitions and interpretation
In this agreement:
(a) Additional Fee means a charge in accordance with the Supplier’s standard rates in effect from time-to- time;
(b) Agreement means this agreement including its annexures and appendices;
(c) Agreement Details mean the section of this agreement styled as ‘Part A—Agreement Details’.
(d) Australian Consumer Law means the Competition and Consumer Act 2010 (Cth), Schedule 2 (Australian Consumer Law).
(e) Authorised User means those employees, agents and independent contractors of the Customer who are authorised by the Customer to utilise the Hybrid Workforce Platform.
(f) Chapter 5 Body Corporate has the meaning given to it by section 9 of the Corporations Act 2001 (Cth).
(g) Commencement Date means that specified in Item 1 (Commencement Date) in the Agreement Details;
(h) Confidential Information means:
(i) in the case of the Customer, Customer Data; and
(ii) in the case of the Supplier includes:
(A) information relating to the Hybrid Workforce Platform;
(B) information relating to the personnel, policies, business, systems and data of the Supplier; and
(C) information relating to the terms on which the Services are to be provided to the Customer pursuant to this agreement;
(i) Customer Access Facilities means telecommunications, networks, systems and any other facilities used or required by or on behalf of the Customer for accessing and making use of any Services other than the facilities actually provided by the Supplier from time to time under this agreement;
(j) Customer Data means data to which the Supplier is provided access by the Customer for the purpose of the Services;
(k) Deposited Data means de-identified Customer Data;
(l) Fees means those specified in Item 8 in the Agreement Details;
(m) Force Majeure means a circumstance beyond the reasonable control of the Supplier which results in the Supplier being unable to observe or perform on time an obligation under this agreement. Such circumstances will include but will not be limited to:
(i) any faults, defects, incorrect operation of or other circumstance affecting or relating to Customer Access Facilities or the Hybrid Workforce Platforms; and
(ii) acts of God, lightning strikes, earthquakes, floods, storms, explosions, fires and any natural disaster, acts of war, acts of public enemies, terrorism, riots, civil commotion, malicious damage, sabotage and revolution and strikes.
(n) GST Law means the same as “GST Law” in A New Tax System (Goods and Services Tax) Act 1999 (Cth);
(o) Hybrid Workforce Platform means that application and any accompanying services specified in Item 4 in the Agreement Details;
(p) Initial Term means that specified in Item 2 in the Agreement Details;
(q) Insolvency Event means, in relation to a person:
(i) if the person is a corporation, the corporation becomes a Chapter 5 Body Corporate; or
(ii) if the person is an individual, the individual:
(A) becomes a bankrupt (as defined in the Bankruptcy Act 1966 (Cth));
(B) enters into a debt agreement (as defined in the Bankruptcy Act 1966 (Cth));
(C) enters into a personal insolvency agreement (as defined in the Bankruptcy Act 1966 (Cth)).
(r) Intellectual Property Rights includes present and future rights pertaining to agreements, clients, correspondence, inventions and improvements, systems, processes, code, copyright, trade mark (whether registered or unregistered), design, patent, copyright, database rights, trade secrets, trade names, data and formula, and includes the Hybrid Workforce Platform, its design and code;
(s) Jurisdiction means New South Wales, Australia;
(t) Loss or Claim means, in relation to any person:
(i) a damage, loss, cost, expense or liability incurred by the person; or
(ii) a claim, action, proceeding or demand made against the person,
whether based in contract, equity, negligence, statute or otherwise, and whether present or future, fixed or unascertained, actual or contingent.
(u) Set Up Services means those specified Item 5 in the Agreement Details;
(v) Personal Information means information or an opinion about an identified individual, or an individual who is reasonably identifiable or an opinion about an identified individual, or an individual who is reasonably identifiable;
(x) Renewal Period means that specified in Item 3 in the Agreement Details;
(y) Service Levels mean those levels of service specified in Item 6 in the Agreement Details;
(z) Services mean:
(i) access to and use of the Hybrid Workforce Platform (as set out in this agreement); and
(ii) provision of the Set Up Services.
(aa) Special Conditions mean those specified in Item 9 in the Agreement Details.
(bb) Support means that specified in Item 6 in the Agreement Details.
(cc) Support Policy means the section of this agreement styled as ‘Part C —Support Policy’;
(dd) Terms and Conditions mean the section of this agreement styled as ‘Part B—terms and conditions’.
(ee) User Subscriptions means the user subscriptions purchased by the Customer which entitle Authorised Users to access and use the Hybrid Workforce Platform in accordance with this agreement.
In this agreement:
(a) clause and subclause headings are for reference purposes only;
(b) the singular includes the plural and vice versa;
(c) words denoting any gender include all genders;
(d) reference to a person includes any other entity recognised by law and vice versa;
(e) where a word or phrase is defined its other grammatical forms have a corresponding meaning;
(f) any reference to a party to this agreement includes its successors and permitted assigns;
(g) any reference to any agreement or agreement includes that agreement or agreement as amended at any time;
(h) the use of the word includes or including is not to be taken as limiting the meaning of the words preceding it;
(i) the expression at any time includes reference to past, present and future time and the performance of any action from time to time;
(j) a reference to a statute includes all regulations and amendments to that statute and any statute passed in substitution for that statute or incorporating any of its provisions to the extent that they are incorporated;
(k) a rule of construction does not apply to the disadvantage of a party because the party was responsible for the preparation of this agreement or any part of it;
(l) if a day on or by which an obligation is to be performed or an event is to occur is not a Business Day, the obligation is to be performed or the event is to occur on or by the next Business Day;
(m) a reference to A$, $A, dollar or $ is to Australian currency, and unless the context requires otherwise, excludes GST;
(n) a reference to time is to time in the Jurisdiction;
(o) a reference to a clause, schedule or annexure is to a clause of, or schedule of, or annexure to this agreement, and a reference to this agreement includes any schedule or annexure.
(a) The Supplier will establish and maintain an organisation and process to provide Support for the Hybrid Workforce Platform to the Customer. Support shall include:
(i) diagnosis of problems or performance deficiencies of the Hybrid Workforce Platform; and
(ii) a resolution of the problem or performance deficiencies of the Hybrid Workforce Platform.
(b) The Supplier will provide Support on a Business Day basis.
(c) In addition to the Support outlined in clause 1(a) and (b), the Supplier will provide an internet based support system generally available seven (7) days a week and twenty-four (24) hours a day.
(d) For the purposes of this Part C – Support Policy, Business Day is defined as 9:00 AM through 5:00 PM Australia Eastern Standard time, excluding holidays and weekends.
2. SEVERITY LEVELS
The Supplier will use its best efforts to cure, as described below, reported and reproducible errors in the Hybrid Workplace Platform. The Supplier utilises the following four (4) severity levels to categorise reported problems:
SEVERITY 1 CRITICAL BUSINESS IMPACT
The impact of the reported deficiency is such that the customer is unable to either use the Hybrid Workplace Platform or reasonably continue work using the Hybrid Workplace Platform. The supplier will commence work on resolving the deficiency within one (1) hour of notification and will engage staff during Business Day hours until an acceptable resolution is achieved.
SEVERITY 2 SIGNIFICANT BUSINESS IMPACT
Important features of the Hybrid Workplace Platform are not working properly and there are no acceptable, alternative solutions. While other areas of the Hybrid Workplace Platform are not impacted, the reported deficiency has created a significant, negative impact on the Customer’s productivity or service level. The Supplier will commence work on resolving the deficiency within two (2) hours of notification and will engage staff during Business Day hours until an acceptable resolution is achieved.
SEVERITY 3 SOME BUSINESS IMPACT
Important features of the Hybrid Workplace Platform are unavailable, but an alternative solution is available or non-essential features of the Hybrid Workplace Platform are unavailable with no alternative solution. The Customer impact, regardless of product usage, is minimal loss of operational functionality or implementation resources. The Supplier will commence work on resolving the deficiency within one (1) business day of notification and will engage staff during Business Day hours until an acceptable resolution is achieved.
SEVERITY 4 MINIMAL BUSINESS IMPACT
Customer submits a Hybrid Workplace Platform information request, software enhancement or documentation clarification which has no operational impact. The implementation or use of the Hybrid Workplace Platform by the Customer is continuing and there is no negative impact on productivity. The Supplier will provide an initial response regarding the request within five (5) Business Days.
This agreement is not intended as a consulting agreement for customer services. With respect to Severity One (1) reported deficiencies in the table above, the Supplier may, with the agreement of the Customer, elect to send senior support or development staff to the Customer location to accelerate problem resolution. The Supplier will be responsible for the costs associated with this escalated problem resolution if the problem is determined to be related to supported Hybrid Software Platform software. If it is determined that the problem was not related to the supported Hybrid Software Platform software, the Customer agrees to pay reasonable travel and lodging expenses in addition to the Supplier’s standard consulting rates in effect from time-to-time. Travel time will be charged at consulting rates.
During the term of this agreement, the Supplier will provide the Customer with updates, releases and new versions of the Hybrid Workplace Platform along with other generally available technical material.
The Supplier will undertake all reasonable efforts to provide technical assistance under this agreement and to rectify or provide solutions to problems where the Hybrid Workplace Platform does not function as described in the Hybrid Workplace Platform documentation, but the Supplier does not guarantee that the problems will be solved or that any item will be error-free.
The Supplier will provide the Customer with substantially the same level of service throughout the term of this agreement. The Supplier may from time to time, however, discontinue Hybrid Workplace Platform products or versions and stop supporting Hybrid Workplace Platform products or versions one year after discontinuance, or otherwise discontinue any support service.