Terms and Condition
Devika World Pty Ltd (ABN 91 603 610 975) and it's affiliated companies (Service Provider) has agreed to supply certain Services and/or Software and/or Hardware to the client (Client) subject to the terms of this Service Level Agreement (Agreement).
- In this Agreement:
“Client Materials” means all designs, drawings, documents, computer programs, coding, text, images, sound recordings, video recordings, prototypes and any other materials, items or things, whether in electronic form or otherwise, produced or created by or on behalf of Service Provider in the course of providing the Services to Client.
- “Confidential Information” means any information relating to the commercial activities, technologies, business processes, client relationships, strategic information and any other information related to the conduct of the businesses of either party not already in the public domain.
- “Consulting Fees” means the fees described as such in a Proposal or other communication from Service Provider to Client.
- “Critical” means that a critical business process or function in the production system is no longer working and Client is unable to operate the Software.
- “Hardware” means the hardware (if any) to be supplied by Service Provider to the Client, as described in the Proposal.
- “Hardware Fees” means, if Service Provider has agreed to supply Hardware to the Client under the Proposal, the fees described as such in the Proposal.
- “Help Desk Support Fee” means the fees described as such in an attached schedule, Proposal or other communication from Service Provider to Client in relation to Help Desk Support Plan.
- “Help Desk Support Plan” means the remote support services that are described as such in an attached schedule, Proposal or other communication from Service Provider to Client.
- “Maintenance Fees” means the fees described as such in a Proposal or other communication from Service Provider to Client in relation to Maintenance Plan.
- “Maintenance Plan” means the supply of updates to the software or obtaining access to software updates and upgrades from third-party developers for Client, whether by physical media such as disks or copying to Client’s computer system.
- “Non-critical” means that a business process or function in the production system is no longer working but Client is still able to operate the Software.
- “Proposal” means the document entitled “Proposal”, signed by Service Provider and the Client and which accompanies these terms and conditions.
- “Services” means the information technology services to be provided by Service Provider to Client from time to time or as specified in a Proposal.
- “Software” means the item(s) of software identified as such in the Proposal.
2.1 Service Provider will supply Services to Client. Service Provider will:
(a) Perform the Services to a professional standard;
(b) Ensure that appropriately qualified personnel undertake the performance of the Services on its behalf, and
(c) Use reasonable commercial efforts to perform the Services in accordance with an estimated timetable provided to Client.
3.1 In consideration of the supply of Services and/or Software, Client will pay Service Provider the Consulting Fees and/or Software fees.
3.2 In consideration of the supply of the Hardware, if applicable, the Client will pay Service Provider 100% of Hardware Fees on the placement of order.
3.3 Client acknowledges that Consulting Fees are payable on a time and materials basis. Service Provider shall invoice Consulting Fees on a weekly basis, in arrears, and Client must pay Service Provider's consulting fees invoices within 14 days of receipt.
3.4 For Software fees, 50% deposit is required on placement of an order with full payment due prior to delivery of each milestone defined. A cancellation fee of up to 50% will be applied for any canceled orders.
3.5 Service Provider may refuse to provide any further Services if Client fails to pay any invoice relating to Consulting Fees within the required time.
3.6 Client acknowledges that the Consulting Fees are exclusive of any travel expenses incurred in the delivery of the Services and agrees to reimburse Service Provider on demand for its reasonable travel expenses (which will be mutually agreed upon prior to the delivery of the Services).
3.7 The time that it takes a consultant to travel between Service Provider premises and Client premises will be charged (minimum of 45 minutes) at Service Provider’s standard consulting rate as notified to Client in a Proposal or other communication from Service Provider to Client.
3.8 Services will be performed during business hours of 8.30am to 5.30pm Monday to Friday. Service Provider will be entitled to charge its standard out-of-hours hourly rate of 1½ times or as notified to Client in a Proposal or other communication from Service Provider to Client in respect of any Services required by Client outside these hours. Permission will be obtained from Client before any out-of-hours Services are provided at the out-of-hours rate.
3.9 In consideration of the supply of Help Desk Support Plan, Client will pay Service Provider the Help Desk Support Fee. Service Provider shall invoice Help Desk Support Fee annually in advance and Client must pay Service Provider's Help Desk Support Fee invoices within 14 days of receipt.
3.10 Service Provider may refuse to provide Client any entitlements under Help Desk Support Plan if Client fails to pay any invoice relating to Help Desk Support Plan within the required time.
3.11 Help Desk Support Plan entitlements will be available between the hours of 9.00am to 5.00pm AEST Monday to Friday.
3.12 In consideration of the supply of Maintenance Plan, Client will pay Service Provider the Maintenance Fees. Service Provider shall invoice Maintenance Fees annually in advance and Client must pay Service Provider's Maintenance Fees invoices within 14 days of receipt.
3.13 Service Provider will refuse to provide Client any entitlements under Maintenance Plan if Client fails to pay any invoice relating to Maintenance Plan within the required time.
4. Supply of Hardware
4.1 Service Provider will supply the Hardware to the Client in accordance with the requirements of the Proposal or will assist and facilitate the acquisition of the Hardware for the Client through an agreed third party hardware supplier.
4.2 The Client acknowledges and agrees that Service Provider is not the manufacturer of the Hardware and, therefore, is not responsible for any defects subsisting in or affecting the Hardware. Service Provider's liability in relation to the Hardware is limited to taking all reasonable measures to pass on the benefit to the Client of all manufacturers’ warranties applying in relation to the Hardware.
5.1 The Client shall not without the prior written approval of the other, make public or disclose to any other entity, any information in respect of this Agreement. The parties shall not without the prior written approval of the other make public or disclose to any other entity any Confidential Information of the other party. If a party gives approval for such disclosure pursuant to this clause, that party may impose such terms and conditions as it thinks fit.
5.2 Unless otherwise agreed in writing by the Service Provider, The Client shall positively guard against and shall ensure that its personnel and subcontractors positively guard against, the direct or indirect disclosure of confidential information of the other party to any third person.
5.3 The obligations pursuant to clause 4.1 hereof shall not be taken to have been breached where the information referred to is legally required to be disclosed or is disclosed by a party to its professional advisers for the purposes of obtaining professional advice.
6.1 Client must neither:
(a) during the time that Service Provider provides the Services and for a period of 12 months after the completion of the Services, engage any employee or contractor of Service Provider as an employee or contractor of Client or permit anybody corporate that is “related” to Client or is an “associated entity” of Client, (as those terms are defined in the Corporations Act 2001 (Cth)) to do so; nor
(b) engage any employee or contractor of Service Provider as an employee or contractor of Client or permit anybody corporate that is “related” to Client or is an “associated entity” of Client, (as those terms are defined in the Corporations Act 2001 (Cth)) to do so, within 6 months of the termination of that employee or contractor’s engagement with Service Provider.
7. Intellectual Property Rights
7.1 Subject to payment by Client of all amounts due in respect of the Services, Service Provider Grants Client a perpetual, non-exclusive, non-transferable license to use the Client Materials developed by Service Provider specifically for Client.
7.2 Service Provider retains all present and future Intellectual Property Rights in the Client Materials referred to in subclause 7.1.
7.2 Service Provider retains all present Software Intellectual Property Rights in the Client Materials.
7.3 Client acknowledges that its use of Software is regulated by licenses issued by the Service Provider of the Software. These licenses include terms and conditions of use as well as applicable warranty and limitation of liability information. The client will make itself aware of any such terms and conditions.
7.4 At the Service Provider’s discretion, regardless of the Software ownership the Service Provider’s name, at the Service Provider’s discretion, will be visible at the footer of the Software with a link to the Service Provider’s application.
8. Limitation of Liability
8.1 Except as expressly provided in this Agreement, Service Provider makes no express warranties in respect of the Services.
8.2 Notwithstanding any other provision of this Agreement, and to the extent permitted by law:
(a) Service Provider excludes all liability for any indirect or consequential expenses, losses, damages or costs and (without limitation) liability for loss of profits or revenue, business interruption, loss of data, or failure to realise anticipated savings or benefits incurred by or awarded against the other party under or in any way connected with this Agreement or the provision of the Services;
(b) Service Provider excludes all liability for all expenses, losses, damages or costs to the extent that such expenses, losses, damages or costs are caused or contributed to by Client or Client personnel; and
(c) Service Provider's total cumulative liability under or in any way connected with this Agreement or the provision of the Services (including liability arising as a result of the negligence of Service Provider or any third party or under an indemnity or for breach of warranty) is limited to the Service Fees paid by Client to Service Provider for the Services in respect of which the liability arose.
(d) Client’s sole and exclusive remedy, at Service Provider’s option, is that in respect of the goods or services that is in dispute, Service Provider either:
(i) supplies the services again or (ii) supplies, replaces or repairs goods provided as part of the services or
(iii) refunds the fees paid by Client for such goods or services.
Client agrees to indemnify Service Provider against any loss, damage or liability whatsoever arising from any breach of Agreement or act or omission by Client, Client’s employees, sub-contractors or agents under or in connection with this Agreement.
10.1 If a dispute arises out of or relates to this Agreement, or the breach, termination, validity or subject matter thereof, the parties to the Agreement and the dispute expressly agree to endeavour to settle the dispute by mediation administered by the Australian Commercial Disputes Centre (ACDC) before having recourse to arbitration or litigation.
10.2 A party claiming that a dispute has arisen, must give written a notice to the other parties to the dispute specifying the nature of the dispute.
10.3 On receipt of the notice specified in (a), the parties to the dispute must within seven (7) days of receipt of said notice seek to resolve the dispute.
10.4 If the dispute is not resolved within seven (7) days or within a further period as the parties agree then the dispute is to be referred to ACDC.
10.5 The mediation shall be conducted in accordance with ACDC Mediation Guidelines which set out the procedures to be adopted, the process of selection of the mediator and the costs involved and which terms are hereby deemed incorporated.
10.6 The parties agree that if the mediation fails to resolve the dispute, the mediator is to issue a certificate of failed mediation.
10.7 This clause shall not merge upon completion.
11. Term and Termination
11.1 This Agreement commences on the date of execution and continues in force until terminated in accordance with the provisions of this Agreement unless otherwise agreed in writing between the parties.
11.2 Either party may terminate this Agreement on written notice to the other while preserving whatever rights may have accrued to it where the other party:
(a) Commits a breach which is not capable of being remedied and the other party has been so notified in writing;
(b) Fails to remedy a breach capable of remedy within 30 days of receipt of a notice specifying the breach; or
(c) Becomes Insolvent or assigns its rights or obligations under this Agreement otherwise than in accordance with this Agreement.
11.3 On termination of this Agreement:
(a) The accrued rights and remedies of each party remain unaffected.
(b) The Client must pay Service Provider for all Services supplied in accordance with this Agreement prior to the termination date on demand.
(c) In the event that any milestone for the payment of Service Fees has not been reached as at the date of termination of this Agreement, Client shall pay Service Provider an amount representing the value of the Services provided up to the date of termination on a quantum merit basis.
12. Force Majeure
Neither party shall be liable for the consequences of an occurrence of any event beyond its reasonable control.
This Agreement is governed by and construed in accordance with the laws for the time being in force in NSW and Australia and the parties agree to submit to the jurisdiction of the courts of that State.
Neither party may assign or otherwise deal with its rights or obligations under this Agreement without the prior written consent of the other party: such consent will not be unreasonably withheld.
Should any part of this Agreement be or become invalid, that part is severed from this Agreement. Such invalidity does not affect the validity of the remaining provisions of this Agreement.
This Agreement may be varied from time to time providing that both parties agree to the variations in writing. Any such variations must consider any variations in costs and delivery time frames that may result.