IT Services Agreement

Terms and Conditions
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1 HOW TO READ THIS AGREEMENT
1.1 MEANING OF CAPITALISED WORDS AND PHRASES
Capitalised words and phrases used in these terms and conditions have the meaning given:
(a) to that word or phrase in the Key Details;
(b) by the word immediately preceding any bolded and bracketed word(s) or phrase(s); or
(c) in the definitions in clause 15 of this agreement.
1.2 ORDER OF PRECEDENCE
(a) Subject to clause 1.2(b) and unless otherwise expressly stated, in the event of any inconsistency between these terms and conditions and the Key Details, these terms and conditions will prevail to the extent of such inconsistency.
(b) Any Special Conditions set out in a Key Details that are:
(i) intended to replace an “Old Clause” with a “New Clause” (as indicated by the use of both columns), then the “New Clause” will replace and prevail over the clause in the Old Clause column entirely; and
(ii) intended to add a “New Clause” (as indicated by the use of only the New Clause column) are incorporated in these terms and conditions and will replace and prevail over any other terms to the extent of any inconsistency.
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2 DURATION AND RENEWAL OF THIS AGREEMENT
(a) This agreement will commences on the Start Date, and continues in effect until the End Date set out in the Key Details, unless earlier terminated in accordance with clause 11, or extended in accordance with clause 2(b).
(b) The parties may agree to extend this agreement by mutual agreement, including by conduct that indicates an intention to extend the Term.
(c) If any Services are supplied after the expiry of the Term without the parties having entered into a replacement agreement or otherwise having expressly agreed in writing that these terms will not apply, the terms of this agreement will continue to apply for those Services.
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3 THE SERVICES
3.1 SCOPE OF SERVICES
(a) Aloka Technology Solutions will perform the Services in accordance with this clause 3 and the Key Details (Services). If any activity is stated in Schedules 1 or 2 as only applying to a particular Subscription Tier, then that activity will only be performed if the Key Details state that Subscription Tier applies.
(b) The Services do not include the specific exclusions set out in Schedule 3 and any other activities that are not expressly stated as included in accordance with clause 3.1(a) (Excluded Services).
(c) If any Excluded Services are required by the Client from time to time in Aloka Technology Solutions’ reasonable opinion (Additional Services) the parties will follow the process set out in Schedule 3.
(d) The Client may upgrade its Subscription Tier at any time by written notice to Aloka Technology Solutions and with an adjustment to the Fees commensurate with Aloka Technology Solutions then current fee for the upgraded Subscription Tier.
3.2 DATA MIGRATION & INTEGRATION SERVICES
The Client acknowledges and agrees that:
(a) there is an inherent risk that the Client Data may be damaged or lost in migrating data or integrating data between systems as part of the Services;
(b) while Aloka Technology Solutions will take all reasonable steps to protect the Client Data while performing the Services, events outside of Aloka Technology Solutions’ control may occur and cause damage or loss to the Client Data, including issues with third party systems;
(c) Aloka Technology Solutions will not be responsible for any failure to convert, store, migrate, or integrate Client Data where such failure is out of Aloka Technology Solutions’ control or contributed to by the Client or any third party;
(d) Aloka Technology Solutions will not be responsible for the deletion of Client Data stored or processed during the provision of the Services, or for the corruption of or loss of any data, information or content contained in Client Data;
(e) the Client bears full responsibility for archiving and backing up Client Data and sole liability for any lost or irrecoverable Client Data;
(f) the provision of the Services and the Client’s access to the Services, including the Client Data, may depend on third-party networks, including for continuity of access and connectivity to Aloka Technology Solutions, the provision of the Services and security measures over which we do not have control; and
(g) to the maximum extent permitted by law, Aloka Technology Solutions will not be liable for such loss or damage to the Client Data.
3.3 DATA MATCHING SERVICES
(a) Where Aloka Technology Solutions performs Data Matching Services, the Client acknowledges and agrees:
(i) unless otherwise specified the Data Matching Services are provided using Client Data and other external data (such as pricing data or delivery times) provided by third parties;
(ii) Aloka Technology Solutions provides no guarantee regarding the accuracy, completeness, or reliability of any Client Data, any third party data, or any outcome of the Data Matching Services due to the inherent limitations in the data sources;
(iii) unless otherwise specifically agreed, Aloka Technology Solutions does not guarantee a particular result or outcome from the Client’s reliance on the Data Matching Services (such as achieving the lowest available price or a particular cost saving).  
(b) The Client acknowledges and agrees that the accuracy or completeness of Client Data provided to Aloka Technology Solutions is the sole responsibility of the Client. Aloka Technology Solutions will not be held liable for any errors, omissions, or inaccuracies in the Client Data that may impact any of the Services.
3.4 INFRASTRUCTURE RECOMMENDATIONS
The Client acknowledges and agrees that:
(a) any information or recommendations provided to the Client in relation to the Client’s IT System in the course of providing the Services is based on:
(i) the information provided by the Client to Aloka Technology Solutions; and
(ii) Aloka Technology Solutions’ knowledge of current best practice and technological developments;
(b) the Client must make its own assessments of its business requirements and infrastructure needs; and
(c) the Client must ensure that it complies with applicable regulations relevant to the Client’s business, including industrial relations laws and privacy laws.
3.5 SOFTWARE LICENCES & TERMS AND CONDITIONS
(a) The Client acknowledges and agrees that third party terms & conditions may apply to any part of the Services, including:
(i) the Client’s Software; and
(ii) the Hosted Services as further described in Schedule 2,
(Third Party Terms).
(b) Aloka Technology Solutions will endeavour to notify the Client of Third Party Terms that apply to the Services, in which case:
(i) the Client must immediately notify Aloka Technology Solutions if they do not agree to the Third Party Terms; and
(ii) if Aloka Technology Solutions does not receive a notice in accordance with clause 3.4(b)(i) the Client will be taken to have accepted those Third Party Terms, and Aloka Technology Solutions will not be liable for any loss or damage suffered by the Client in connection with such Third Party Terms.
(c) The Client acknowledges and agrees that if the Client does not agree to any Third Party Terms, this may affect Aloka Technology Solutions’ ability to meet Key Dates and / or Times, and the Client will not hold Aloka Technology Solutions liable for this.
3.6 AUTONOMY AND DISCRETION
Aloka Technology Solutions will have absolute control and discretion over working times, methods, and decision making in relation to the provision of the Services. Aloka Technology Solutions will be responsive to the reasonable needs and concerns of the Client.
3.7 SUBCONTRACTS
The Client acknowledges and agrees that Aloka Technology Solutions may, in its absolute discretion and without further notice to or approval from the Client, subcontract any part of the Services. Aloka Technology Solutions will be responsible for any subcontractors’ performance of the Services.
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4 CLIENT DATA ROLES AND RESPONSIBILITIES
4.1 OBLIGATIONS
(a) Aloka Technology Solutions will establish, maintain, enforce and continuously improve safety and security procedures and safeguards against the unauthorised use, destruction, loss or alteration of the Client Data. The Client must not, and ensure that its personnel do not, undertake any action that may have the potential to compromise Aloka Technology Solutions’ ability to comply with this clause.
(b) Aloka Technology Solutions will not make any undocumented, unreported or authorised configuration changes to Aloka Technology Solutions’ systems or to the information security controls that secure the Client Data, if those changes would materially decrease the protections afforded to the Client Data.
(c) Aloka Technology Solutions will notify and keep the Client notified of Aloka Technology Solutions’ current safety and security procedures and safeguards that are made from time to time.
4.2 DATA BREACH
(a) The Client or Aloka Technology Solutions (as the case may be) will immediately notify the other party after learning of any potential, actual or suspected loss, misappropriation or unauthorised access to, or disclosure or use of Confidential Information or Personal Information or other compromise of the security, confidentiality, or integrity of Confidential Information or Personal Information (collectively, Security Breaches).
(b) Aloka Technology Solutions will promptly investigate each potential, actual or suspected Security Breach and assist the Client and its personnel in connection with any investigation that the Client may desire to conduct with respect to the Security Breach.
(c) Aloka Technology Solutions will take all steps requested by the Client to limit, stop or otherwise remedy any potential, actual or suspected Security Breach. The Client must take all steps necessary to ensure that data integrity is maintained if the IT System crashes, suffers a power surge or is otherwise compromised, including by immediately notifying Aloka Technology Solutions and following any directions given by Aloka Technology Solutions.
(d) The Client will be solely responsible for any obligations in relation to any Notifiable Data Breaches and the Office of the Australian Information Commission.
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5 GENERAL CLIENT OBLIGATIONS
5.1 PROVIDE INFORMATION
The Client must provide Aloka Technology Solutions with all documentation, information and assistance reasonably required by Aloka Technology Solutions to perform the Services.
5.2 ACCESS
The Client agrees to provide Aloka Technology Solutions with access to:
(a) any Client Data (including access to Client Data hosted on a third party system) and any other documentation, information, or assistance reasonably necessary to perform the Services;
(b) the Client’s premises and personnel, to the extent required to perform the Services;
(c) the Client’s website (but only where Aloka Technology Solutions is providing Services that involve making updates or changes to the Client’s website); and
(d) any other third party or other accounts used by the Client (including login details and passwords),
as reasonably required by Aloka Technology Solutions to perform the Services.
5.3 AUTHORITY
The Client warrants that they will provide Aloka Technology Solutions with the required authority to interact with, copy and transfer the Client’s data as reasonably required by Aloka Technology Solutions to perform the Services. The Client agrees that failure to provide Aloka Technology Solutions with the required authority as described in this clause may affect Aloka Technology Solutions’ ability to meet Key Dates and / or Times, and that Aloka Technology Solutions will not be held liable for this.
5.4 SPECIFIED CONFIGURATION AND SOFTWARE
(a) The Client must maintain the Client’s hardware, Software licences and internet connection as necessary for Aloka Technology Solutions to perform the Services.
(b) The Client must, and ensure must ensure that its personnel, comply with all Software licences. Unless permitted by the relevant Software licence, the Client must not attempt to circumvent any technological protection mechanism or other security features of any Software.
(c) Aloka Technology Solutions will not be responsible for any access or performance related issues arising out of or in connection with the Client’s failure to comply with this clause 5.4.
5.5 COMPLIANCE WITH LAWS
The Client agrees that it will not, by receiving or requesting the Services:
(a) breach any applicable laws, rules and regulations (including any applicable privacy laws); or
(b) infringe the intellectual property rights or other rights of any third party or breach any duty of confidentiality.
5.6 INTERFERENCE
The Client agrees that it will not interfere with, or attempt to interfere with, the access of any other user, host or network, including, without limitation, sending a virus, malicious programs, overloading, flooding, spamming, or mail-bombing the Services.
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6 FEES AND PAYMENT
6.1 FEES
(a) The Client must pay the Fees in the amounts, and on or before the Due Date(s), set out in the Key Details.
(b) To the maximum extent permitted under the Competition and Consumer Act 2010 (Cth) any Fees paid in accordance with this agreement are non-refundable.
(c) If there is no Due Date set out in the Key Details in relation to a Fee, that Fee must be paid at the time set out the relevant invoice issued by Aloka Technology Solutions.
6.2 SUBSCRIPTION FEES
Unless otherwise agreed in writing, where the Services are provided as part of a Subscription Tier (Subscription), the relevant Fees are due and payable on a recurring basis for the duration of that Subscription at the frequency specified in the Key Details or
6.3 INVOICES
Aloka Technology Solutions will issue a valid tax invoice to the Client for payment of the Fees. The Client must pay the Fees in accordance with the remittance method set out in an invoice.
6.4 SUSPENSION OF SERVICES
Aloka Technology Solutions reserves the right to suspend all or part of the Services indefinitely where the Client fails to pay the Fees in the amounts and times specified in the Key Details.
6.5 EXPENSES
Unless otherwise agreed in writing:
(a) the Client will bear all travel, accommodation, office stationery, computer storage, media and related expenses reasonably incurred by Aloka Technology Solutions in connection with the Key Details; and
(b) any third party costs incurred by Aloka Technology Solutions in the course of performing the Services may be billed to the Client, unless specifically otherwise provided for in the Key Details.
6.6 GST
Unless otherwise indicated, amounts stated in the Key Details do not include GST. In relation to any GST payable for a taxable supply by Aloka Technology Solutions, the Client must pay the GST subject to Aloka Technology Solutions providing a tax invoice.
6.7 CARD SURCHARGES
Aloka Technology Solutions reserves the right to charge credit card surcharges in the event payments are made using a credit, debit or charge card (including Visa, MasterCard or American Express).
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7 CONFIDENTIALITY AND PRIVACY
7.1 PRIVACY
(a) The parties must comply with:
(i) if applicable, their respective obligations under the Privacy Act 1988 (Cth); and
(ii) Aloka Technology Solutions’ privacy policy as in force from time to time.
(b) Aloka Technology Solutions will keep the Client informed of any changes to Aloka Technology Solutions’ Privacy policy during the term.
7.2 CONFIDENTIAL INFORMATION
The parties will not, during or at any time after the Term, disclose Confidential Information directly or indirectly to any third party except:
(a) with the other party’s prior written consent;
(b) as required by Law; or
to their Personnel on a need to know basis for the purposes of performing its obligations under this agreement (Additional Disclosees).
7.3 BREACH
If either party becomes aware of a suspected or actual breach of clause 7.2 by that party or an Additional Disclosee, that party will immediately notify the other party and take reasonable steps required to prevent, stop or mitigate the suspected or actual breach. The parties agree that damages may not be a sufficient remedy for a breach of this clause 7.2.
7.4 PERMITTED USE
A party may only use the Confidential Information of the other party for the purposes of exercising its rights or performing its obligations under this agreement.
7.5 RETURN
On termination or expiration of this agreement, each party must immediately return to the other party, or (if requested by the other party) destroy, any documents or other Material in its possession or control containing Confidential Information of the other party.
7.6 ADDITIONAL DISCLOSEES
Each party will ensure that Additional Disclosees keep the Confidential Information confidential on the terms provided in this clause 7.6. Each party will, when requested by the other party, arrange for an Additional Disclosee to execute a document in a form reasonably required by the other party to protect Confidential Information.
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8 INTELLECTUAL PROPERTY
8.1 DEFINITIONS
In this clause, the following terms have the following meanings in relation to Intellectual Property Rights:
(a) Existing Material means Material, other than New Material;
(b) New Material means Material that is created, written, developed or otherwise brought into existence during the Term for the purposes of this agreement; and
(c) Material means tangible and intangible information, documents, reports, software (including source and object code), inventions, data and other materials in any media whatsoever.
8.2 EXISTING MATERIAL
(a) Except to the extent otherwise stated in the Key Details or in this clause 8:
(i) each party retains ownership of the Intellectual Property Rights in its Existing Material; and
(ii) nothing in this agreement transfers ownership of, or assigns any Intellectual Property Rights in, either party’s Existing Material to the other party.
(b) The Client grants to Aloka Technology Solutions (and its Personnel) a non-exclusive, royalty free, non-transferable, worldwide and irrevocable licence to use its Existing Material to the extent reasonably required to perform any Services.
(c) The Client warrants that Aloka Technology Solutions’ use of the Client’s Existing Material will not infringe the Intellectual Property Rights of any third party and will indemnify Aloka Technology Solutions from and against all losses, claims, expenses, damages and liabilities (including any taxes, fees or costs) which arise out of such infringement.
(d) Aloka Technology Solutions grants to the Client a non-exclusive, royalty free, non-transferable and revocable licence to use its Existing Material, to the extent:
(i) such Existing Material is incorporated into the New Material; and
(ii) such use is reasonably required for the Client to enjoy the benefit of the Services.
8.3 NEW MATERIAL
(a) Unless otherwise stated in the Key Details, Intellectual Property Rights in New Material are immediately assigned to and vest in Aloka Technology Solutions as those rights are created.
(b) Aloka Technology Solutions grants to the Client a non-exclusive, royalty free, non-transferable and revocable licence to use the New Material to the extent such use is reasonably required for the Client to enjoy the benefit of the Services.
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9 WARRANTIES AND LIABILITY
9.1 WARRANTIES
(a) To the maximum extent permitted by applicable law, all express or implied representations and warranties not expressly stated in this agreement are excluded.
(b) Nothing in this agreement is intended to limit the operation of the Australian Consumer Law contained in the Competition and Consumer Act 2010 (Cth) (ACL). Under the ACL, the Client may be entitled to certain remedies (like a refund, replacement or repair) if there is a failure with the goods or services we provide.
9.2 LIABILITY
(a) (Liability) To the maximum extent permitted by applicable law, the total liability of each party in respect of loss or damage of any kind sustained by the other party (and any third parties who encounter the services or goods through the Client’s business), in connection with this agreement or the Services is limited to the amount paid by the Client to Aloka Technology Solutions under the most recent Key Details, except in relation to the Client’s liability arising from the Client’s or the Client’s employee’s, client’s, contractor’s or agent’s breaches of clauses 4, 5, 6, 7, or 8.
(b) (Indemnity) The Client indemnifies Aloka Technology Solutions and its employees, contractors and agents in respect of all liability for any claim(s) by any person (including any third party who encounter the services or goods through the Client’s business) arising from the Client’s or the Client’s employee’s, client’s, contractor’s or agent’s:
(i) breach of any third party intellectual property rights;
(ii) breach of any term of this agreement; and
(iii) negligent, wilful, fraudulent or criminal act or omission.
(c) (Consequential loss) To the maximum extent permitted by law, under no circumstances will either be liable for any incidental, special or consequential loss or damages, or damages for loss of data, business or business opportunity, goodwill, anticipated savings, profits or revenue arising under or in connection with this agreement or any goods or services provided by Aloka Technology Solutions, except:
(i) to the extent this liability cannot be excluded under the Competition and Consumer Act 2010 (Cth);
(ii) in respect of the Client’s liability in respect of loss or damage sustained by us arising from a breach of clauses 4, 5, 6, 7, or 8.
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10 IF THE PARTIES HAVE A DISPUTE
(a) If an issue between the parties arises under this agreement that cannot be resolved day-to-day, the parties will make genuine efforts in good faith to participate cooperatively in mediation, at equal shared expense of the parties.
(b) The parties will conduct mediation through the Australian Disputes Centre (ADC) and in accordance with the ADC’s Guidelines for Commercial Mediation (as current at the time of the dispute).
(c) The parties will follow the mediator’s recommendations on the extent of mediation required, and when to stop mediation if the issue cannot be resolved.
(d) If mediation does not resolve the issue, the parties must:
(i) if they haven’t already done so, engage independent legal representation at their own expense to understand the strength of their arguments; and
(ii) based on that advice, if settlement is not achieved, participate in arbitration (or other dispute resolution mechanism agreed in mediation) through the ADC at equal shared expense.
(e) The parties will follow the binding outcome of arbitration (or other agreed mechanism).
(f) Either party may at any time during this process make an offer for settlement. The parties acknowledge and agree it is in their best interests to properly consider all genuine settlement offers. The parties will use best endeavours to avoid litigation and reach a prompt settlement.
(g) The process in this clause does not apply where a party requires an urgent injunction.
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11 TERMINATION
11.1 TERMINATION FOR CONVENIENCE
(a) Either party may end this agreement for no reason, by providing 7 days’ notice to the other party.
(b) If the notice under clause 11.1(a) is:
(i) 7 days or more prior to the Start Date, Aloka Technology Solutions will provide the Client with a full refund of any Fees paid;
(ii) more than 3 days but less than 5 days prior to the Start Date, the Client must pay to Aloka Technology Solutions 20% of the Fees;
(iii) more than 2 days but less than 3 days prior to the Start Date, the Client must pay to Aloka Technology Solutions 30% of the Fees;
(iv) less than 48 hours prior to the Start Date, the Client must pay to Aloka Technology 50% of the Fees.
(c) This agreement will end 7 days after the day the notice is sent (the End Date).
(d) On the End Date, Aloka Technology Solutions will provide an invoice to the Client for:
(i) any Fees for Services already performed up to the End Date (including Services performed to prepare not yet completed deliverables);
(ii) any pre-approved third party costs Aloka Technology Solutions has incurred on the Client’s behalf up to the End Date; and
(iii) if terminated by the Client, Aloka Technology Solutions’ pre-estimated genuine losses as a result of the Client ending this agreement,
(together, the Outstanding Amounts)
(e) The Client will pay the Outstanding Amounts to Aloka Technology Solutions within a further 10 Business Days after the End Date, unless otherwise agreed in a written payment plan between the parties.
(f) Once the Outstanding Amounts have been paid, Aloka Technology Solutions will hand over any completed deliverables.
(g) If Aloka Technology Solutions terminates this agreement pursuant to this clause, Aloka Technology Solutions will make reasonable efforts to handover the remaining scope of Services to the Client, so the Client can source an alternative provider.
11.2 TERMINATION FOR BREACH
(a) If a party (the Notifying Party) considers that the other party is in breach of this agreement (the Breach), the Notifying Party may provide a notice to the other party.
(b) The notice must include the nature and details of the Breach, with reference to the relevant clause/s of this agreement. The Notifying Party may, if it wishes to do so, make suggestions for resolving the Breach.
(c) The other party will have 10 Business Days (or longer, in the Notifying Party’s discretion) to rectify the Breach (the Rectification Period).
(d) After the Rectification Period, the Notifying Party will:
(i) if the Breach has been successfully rectified, notify the other party that the agreement will continue; or
(ii) if the Breach has not been successfully rectified, notify the other party that this agreement is terminated (Termination for Breach Notice).
(e) Following a Termination for Breach Notice, the parties will stop all work under this agreement unless otherwise agreed.
(f) Any disputes regarding termination under this clause must be dealt with in accordance with clause 10. The indemnities, warranties and liability caps in clause 9.2 will apply to any disputes and resulting claims. Any pre-estimated losses in clause 11.1 will not limit or otherwise effect Aloka Technology Solutions’ rights under this agreement, at law or otherwise in equity; Aloka Technology Solutions’ losses resulting from the Client’s breach are likely to far exceed its losses resulting from termination for the Client’s convenience.
11.3 OTHER CONSEQUENCES FOR TERMINATION
If this agreement ends, in addition to the specific consequences set out in clause 11.1 or 11.2 (as applicable), the parties will:
(a) return all property and Confidential Information to the other party;
(b) comply with all obligations that are by their nature intended to survive the end of this agreement, including without limitation obligations dealing with liability caps and intellectual property; and
(c) stop using any materials that are no longer owned by, or licensed to, them when this agreement ends in accordance with clause 8.
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12 FORCE MAJEURE
(a) A ‘Force Majeure Event’ means any occurrence beyond the control of the Affected Party which prevents the Affected Party from performing an obligation under this agreement (other than an obligation to pay money), including any:
(i) act of God, lightning strike, meteor strike, earthquake, storm, flood, landslide, explosion or fire;
(ii) strike or other industrial action;
(iii) war, terrorism, sabotage, blockade, revolution, riot, insurrection, civil commotion, epidemic, pandemic; or
(iv) decision of a government authority in relation to COVID-19, or other epidemic or pandemic,
to the extent the occurrence affects the Affected Party’s ability to perform the obligation.
(b) If a party (Affected Party) becomes unable, wholly or in part, to carry out an obligation under this agreement (other than an obligation to pay money) due to a Force Majeure Event, the Affected Party must give to the other party prompt written notice of:
(i) reasonable details of the Force Majeure Event; and
(ii) so far as is known, the probable extent to which the Affected Party will be unable to perform or be delayed in performing its obligation.
(c) Subject to compliance with clause 12(b), the relevant obligation will be suspended during the Force Majeure Event to the extent that the obligation is affected by the Force Majeure Event.
(d) The Affected Party must use its best endeavours to overcome or remove the Force Majeure Event as quickly as possible and resume performing the relevant obligation.
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13 NOTICES
(a) Any notices required to be sent under this agreement must be sent via email using the party’s email addresses set out in the Key Details and the email’s subject heading must refer to the name and date of this agreement.
(b) If no email address is stated in this agreement, the notice may be sent to the email address most commonly used by the parties to correspond in relation to this agreement at the time the notice is sent.
(c) The notice will be considered to be delivered 24 hours after it was sent, unless the sender has reason to believe the email failed to send or was otherwise not delivered or received.
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14 GENERAL
14.1 RELATIONSHIP
In providing the Services under this Agreement it is expressly agreed that the Contractor is acting as an independent contractor and not as an employee. The parties agree that this Agreement does not create a partnership or joint venture between them.
14.2 GOVERNING LAW AND JURISDICTION
This agreement is governed by the law applying in Victoria, Australia. Each party irrevocably submits to the exclusive jurisdiction of the courts of Victoria, Australia and courts of appeal from them in respect of any proceedings arising out of or in connection with this agreement. Each party irrevocably waives any objection to the venue of any legal process on the basis that the process has been brought in an inconvenient forum.
14.3 BUSINESS DAYS
If the day on which any act is to be done under this agreement is a day other than a Business Day, that act must be done on or by the immediately following Business Day except where this agreement expressly specifies otherwise.
14.4 AMENDMENTS
This agreement may only be amended in accordance with a written agreement between the parties.
14.5 WAIVER
No party to this agreement may rely on the words or conduct of any other party as a waiver of any right unless the waiver is in writing and signed by the party granting the waiver.
14.6 SEVERANCE
Any term of this agreement which is wholly or partially void or unenforceable is severed to the extent that it is void or unenforceable. The validity and enforceability of the remainder of this agreement is not limited or otherwise affected.
14.7 JOINT AND SEVERAL LIABILITY
An obligation or a liability assumed by, or a right conferred on, two or more persons binds or benefits them jointly and severally.
14.8 ASSIGNMENT & NOVATION
A party cannot assign, novate or otherwise transfer any of its rights or obligations under this agreement without the prior written consent of the other party.
14.9 COUNTERPARTS
This agreement may be executed in any number of counterparts. Each counterpart constitutes an original of this agreement and all together constitute one agreement.
14.10 COSTS
Except as otherwise provided in this agreement, each party must pay its own costs and expenses in connection with negotiating, preparing, executing and performing this agreement.
14.11 ENTIRE AGREEMENT
This agreement embodies the entire agreement between the parties and supersedes any prior negotiation, conduct, arrangement, understanding or agreement, express or implied, in relation to the subject matter of this agreement.
14.12 INTERPRETATION
(a) (singular and plural) words in the singular includes the plural (and vice versa);
(b) (currency) a reference to $; or “dollar” is to Australian currency;
(c) (gender) words indicating a gender includes the corresponding words of any other gender;
(d) (defined terms) if a word or phrase is given a defined meaning, any other part of speech or grammatical form of that word or phrase has a corresponding meaning;
(e) (person) a reference to “person” or “you” includes an individual, the estate of an individual, a corporation, an authority, an association, consortium or joint venture (whether incorporated or unincorporated), a partnership, a trust and any other entity;
(f) (party) a reference to a party includes that party’s executors, administrators, successors and permitted assigns, including persons taking by way of novation and, in the case of a trustee, includes any substituted or additional trustee;
(g) (this agreement) a reference to a party, clause, paragraph, schedule, exhibit, attachment or annexure is a reference to a party, clause, paragraph, schedule, exhibit, attachment or annexure to or of this agreement, and a reference to this agreement includes all schedules, exhibits, attachments and annexures to it;
(h) (document) a reference to a document (including this agreement) is to that document as varied, novated, ratified or replaced from time to time;
(i) (headings) headings and words in bold type are for convenience only and do not affect interpretation;
(j) (includes) the word “includes” and similar words in any form is not a word of limitation; and
(k) (adverse interpretation) no provision of this agreement will be interpreted adversely to a party because that party was responsible for the preparation of this agreement or that provision.
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15 DEFINITIONS
In these terms and conditions, the following words and phrases have the following meaning: Term Meaning
Additional Services Has the meaning given in clause 3.1(c). Additional Services Fees Any amounts payable for the performance of Additional Services.
Business Day A day (other than a Saturday, Sunday or any other day which is a public holiday) on which banks are open for general business in Melbourne, Victoria.
Client Data Any data relating to the Client’s business (including data which contains Confidential Information or Personal Information) which Aloka Technology Solutions deals with in connection with this agreement.
Confidential Information Information of, or provided by, a party that is by its nature confidential information, is designated as confidential, or that the recipient of the information knows or ought to know is confidential (including all commercial information exchanged between the parties), but does not include information which is, or becomes, without a breach of confidentiality, public knowledge.
Data Warehousing Services Means the Services described in Schedule 1. Excluded Services Has the meaning given in clause 3.1(b). Fees The fees set out in the Key Details.
Hosted Services Means the Services described in Schedule 2. Intellectual Property Rights means any and all present and future intellectual and industrial property rights throughout the world (whether registered or unregistered), including copyright, trade marks, designs, patents, moral rights, semiconductor and circuit layout rights, trade, business, company and domain names, and other proprietary rights, trade secrets, know-how, technical data, confidential information and the right to have information kept confidential, or any rights to registration of such rights (including renewal), whether created before or after the date of this agreement.
IT System The Client’s hardware, Software, data communications lines, network and telecommunications equipment and internet-related information technology infrastructure, including computers, laptops and phones.
Key Details The information set out on the pages of this agreement with the subtitle Key Details.
Key Persons The persons identified in the Key Details as the persons who Aloka Technology Solutions intends to provide to perform the Services.
Key Details The order form document at the start of this agreement as completed and attached on the Start Date.
Services Has the meaning given in clause 3.1(a). Software Any programs, applications and other operating information licensed to the Client from third party providers and installed on the Client’s IT System.
Start Date The date written to be the start date on the cover page of this agreement, being the date that this agreement is signed and becomes effective and binding on the parties.
Subscription Tier Means the designation given in the Key Details, which determines the scope of Data Warehousing Services that apply to this agreement in accordance with Schedule 1. Third Party Terms Has the meaning given in clause 3.4(a). Term The duration of this agreement being the Period from the Start Date as set out on the cover page of this agreement.This is some text inside of a div block.