NEC Australia Pty Ltd (or subsidiary company as proposed or quoted)
Level 9, 720 Bourke Street, Docklands, Melbourne VIC 3008 (“NEC”)
1.1 NEC is a provider of Products, Services and Support.
1.2 Client wishes to procure from NEC any combination of Products, Services and Support under the terms of this Agreement.
2.1 “Agreement” means this document, these terms and conditions, along with any Appendices and exhibits to it.
2.2 “Customisations” means changes and amendments to software applications or new applications developed by NEC.
2.3 “Maintenance” means software updates, fixes and enhancements provided by a third party vendor.
2.4 “Help Desk” means the provision of telephone, internet or email assistance.
2.5 “Products” means third party vendor software applications (including Microsoft), NEC-developed software applications (“NEC Products”) and hardware.
2.6 “Services” means the provision of consulting and development activities, including Customisations, to be provided by NEC under this Agreement, as set out in Appendix 1 or a statement of work. This includes but is not limited to project management, business consulting, training, software configuration, IT Infrastructure engineering.
2.7 “Support” means the provision of Maintenance and/or Help Desk.
2.8 “Vendor” means a third party software developer that owns and licenses a Product (such as Oracle or Microsoft).
2.9 GST has the meaning given to it in the A New Tax System (Goods and Services Tax) Act 1999.
3.1 The supply of Products, Services and Support from NEC to the Client are governed by the terms of this Agreement.
3.2 This Agreement does not replace or override any license agreements provided by a Vendor in regard to any Product.
3.3 NEC agrees to provide Services to the Client as described in written form such as (but not limited to) an engagement letter, project management plan, work order, proposal, change requests or statements of work, which will form exhibits to these terms and conditions (collectively, the “Agreement”).
3.4 Services may be provided either at NEC premises, a Client site or other location as required by NEC.
3.5 Retention of Title: Risk of Products transfers to the Client at time of delivery, but NEC retains full title until all amounts due in relation to the supply of those Products have been received by NEC.
3.6 Any amounts paid by the Client in relation to unused portions of Support are not refundable to the Client should this Agreement be terminated for any reason.
4 Commercial Terms
4.1 All amounts in this Agreement are specified and payable in Australian Dollars and are exclusive of GST and other government taxes, charges or imposts. Any such charge, tax or impost shall be additionally charged to the Client at the required rate.
4.2 Services provided on a time and materials basis will be invoiced weekly in arrears based on work performed.
4.3 The Client agrees to pay all invoices for Services within 30 days of the date of the relevant invoice or such other period as may be stated on the invoice.
4.4 All amounts due in respect of hardware will be invoiced on delivery and must be paid by the Client within 7 days of the date of delivery.
4.5 All amounts due in respect of software will be invoiced in advance and must be paid prior to delivery. Delivery for software is defined as the physical installation of the object code for that software on the Client’s hardware or the provision of the software programs in electronic form to the Client from NEC. The method of delivery of any software will be at the sole discretion of NEC.
4.6 Support and Maintenance fees are due annually or monthly in advance as directed by NEC. These fees will be paid by the Client via direct debit where NEC holds a direct debit authority from the Client or otherwise within 30 days of the date of the relevant invoice.
4.7 Travel time between NEC's and the Client’s premises is chargeable at NEC's then prevailing rates.
4.8 NEC reserves the right to cease the provision of Support and/or Services where the Client fails to pay any amounts due under this Agreement within the agreed period.
4.9 NEC reserves the right to charge interest on amounts overdue by more than 90 days at the prevailing CBA Corporate Charge Card rate. The Client may also be liable for all collection and legal costs incurred by NEC in regard to collecting any amounts overdue.
5 Term and Termination
5.1 This Agreement commences on the Effective Date and continues until terminated in writing by either party in accordance with its terms.
5.2 Any party may terminate this Agreement by providing 90 days written notice.
5.3 Either party may terminate this Agreement immediately upon written notice to the other party if the other party enters into administration or liquidation.
5.4 NEC may terminate the Agreement immediately with written notice if any invoice is unpaid for a period greater than 90 days following its due date.
6 Limited Warranty
6.1 Subject to clauses 6.1 and 6.2, NEC represents and warrants that: (i) it has the authority to enter into this Agreement; (ii) it will comply with all applicable law; (iii) Services will be provided in a professional and workmanlike manner; and (iv) to the best of its knowledge, the NEC Products, Services and Support provided by it (but not any Products, Services or Supported provided by or on behalf of a third party) will not violate the copyright or proprietary rights of any third party.
6.2 NEC expressly disclaims any warranty and liability it may have arising out of or relating to a claim of infringement of any person's rights resulting from NEC’s use of tools, instructions, specifications, or other materials provided by the Client to NEC (“client materials”).
6.3 The warranty in clause 6.1 shall not apply where the Client or its employees, agents or other contractors make modifications to any of the Products or any aspect of the results of the Services or Support, where the NEC Products are used in conjunction with other products or where the NEC Products are used other than in accordance with their instructions.
6.4 The Client represents and warrants that: (i) it has the authority to enter into this Agreement; (ii) it will comply with all applicable law; (iii) it has or has obtained the right to permit NEC to supply any of the Products, Services or Support contemplated by this Agreement; and (iv) in entering into this Agreement it has relied upon its own experience, skill and judgement to evaluate the Products, Services and Support and that it has satisfied itself as to the suitability of the Products, Services and Support to meet its requirements.
6.5 For Customisations that are provided by NEC on a fixed price basis, NEC warrants for a period of 90 days from the date on which the Customisations are first delivered to the Client that those Customisations will substantially conform with the specifications agreed to by NEC in respect of those Customisations. If the Client notifies NEC during this 90 day period that a Customisations does not substantially conform with those specifications, NEC will take such action as it deems appropriate to investigate and rectify that non-conformance at its cost. Any investigation and rectification of any errors or issues arising in a Customisation after this 90 day period will be undertaken by NEC as a Service at its then current rates.
6.6 Customisations that are provided by NEC on a time and materials basis are provided to the Client on an "as is" basis and, to the maximum extent permitted by law, NEC makes no representations or warranties as the performance or functionality of any such Customisations. Any investigation and rectification of any errors or issues arising in a Customisation provided by NEC on a time and materials basis will be undertaken by NEC as a Service at its then current rates.
7 Vendor Software Updates
7.1 For Products which the Client has licensed from a third party and paid the relevant Maintenance fees, the Vendor may from time to time supply new software versions and upgrades as they are made available. NEC will make these new versions available to the Client on a periodic basis if they are made available to NEC by the Vendor.
7.2 The services required to install new versions of Products are not provided as part of Support. The parties may agree that NEC will provide such services as a Service at its then current rates.
7.3 Any Services provided in connection with upgrading Customisations will be provided by NEC at its then current rates or on such other basis as NEC may agree.
8.1 If a third party alleges or makes a claim that NEC's provision of the Services or NEC Products infringes that third party's copyright or proprietary rights, the Client’s sole remedy, and NEC's entire liability, in relation to such claim or allegation shall be, in NEC's sole and absolute discretion, to (i) modify the infringing materials so that they are non-infringing; (ii) obtain a license for the Client to use the infringing materials; or (iii) subject to the limitation of liability provisions of this Agreement, refund to the Client the amounts paid by it under this Agreement for the infringing material.
8.2 NEC will have no liability under clause 8.1 if the claim or allegation of infringement is due to NEC’s reliance on the Client’s instructions or specifications or where the Client or its employees, agents or other contractors modify any aspect of the NEC Products or the results of the Services.
8.3 The Client agrees to indemnify, hold harmless and defend NEC from and against any and all judgments, liabilities, damages, losses, expenses and costs (including, but not limited to, court costs and legal fees on a solicitor-client basis) incurred by NEC which relate to the violation of any third party’s copyright or proprietary rights arising in connection with the provision of Services where such violation arises from NEC’s reliance on the Client’s instructions or specifications or where the Client, its employees, agents or other contractors modify any aspect of the NEC Products or the results of the Services.
9 Limited Liability
9.1 To the full extent permitted by law, and subject to clause 9.2, the parties agree that neither party to this Agreement shall have any liability, obligation or responsibility, whether in contract, tort (including but not limited to negligence), under statute or on any other basis, for any lost profits, opportunity costs or lost data, loss of management time or failure to realise anticipated savings or for any indirect, incidental, consequential, special or exemplary damages arising in connection with this Agreement, even if that party has been advised of the possibility of such damages.
9.2 Under the Competition and Consumer Act 2010, when implied conditions and warranties cannot be expressly excluded, NEC limits its liability for any breach of those conditions and warranties to, in the case of Services and Support, the supplying of the Services and Support again, or the payment of the cost of having the Services and Support supplied again and, in the case of the Products, the replacement or repair of the Products or the cost of replacing or repairing the Products, with such decision at the sole discretion of NEC.
9.3 To the full extent permitted by applicable law, NEC’s maximum aggregate liability for damages under or in relation to this Agreement or in tort (including negligence), shall not exceed the amount of the fees paid by Client to NEC under this Agreement during the previous 12 month period in which such claim arises.
10 Intellectual Property
10.1 All rights in any intellectual property relating to the NEC Products, Services, Support, Customisations and associated documentation, remain the property of NEC.
10.2 Subject to 10.1 NEC grants to the Client a non-exclusive, irrevocable, perpetual, non-transferable (with no right to sub-licence) licence to use the intellectual property inherent in any Customisations or the result of the Services for its own internal purposes. Such purposes do not include the exploitation of the intellectual property referred to in this clause or the supply of that intellectual property to third parties.
11 Privacy Notice
11.1 NEC will comply, and will ensure that all of its representatives comply, with the Privacy Act 1988 (Cth) in respect of all personal information collected, used, disclosed and otherwise handled by them under or in connection with this Agreement.
11.2 Subject to the Privacy Act 1988 (Cth), NEC may use Client information to provide the Client with information relating to NEC or promotional details about products and services that may be of interest to the Client, unless the Client has previously advised NEC that it is not to be contacted for those purposes. The Client further agrees that NEC may use the Client as a reference for similar engagements relating to NECs business. Should the Client no longer wish to receive information such as this, it must notify NEC using the contact details specified in clause in section 11.4
11.3 NEC's website – www.nec.com.au details NEC's privacy statement.
11.4 Privacy Contact details are: Privacy Officer, NEC IT Solutions Australia. PO Box 1027, Bentley DC, WA 6983 Ph 08 6250 7900.
12.1 Each party to this Agreement (each, a “Recipient”) shall protect and keep confidential all non-public information disclosed by the other party (each a “Discloser”) and identified as confidential by the Discloser (“Confidential Information”), and shall not, except as may be authorised by the Discloser in writing, use or disclose any such Confidential Information. Upon termination or expiration of this Agreement, the Recipient shall return to the Discloser all Confidential Information of the Discloser.
12.2 The obligations of confidentiality in clause 12.1 shall not apply to any information which: (i) was previously known to the Recipient; (ii) is or becomes publicly available through no fault of the Recipient; (iii) is disclosed to the Recipient by a third party having no obligation of confidentiality to the Discloser; (iv) is independently developed by the Recipient; or (v) is required to be disclosed as a matter of law.
12.3 Both parties acknowledge that any use or disclosure of the other party’s Confidential Information in a manner inconsistent with the provisions of this Agreement may cause the non-disclosing party irreparable damage for which remedies other than injunctive relief may be inadequate, and both parties agree that the non-disclosing party may request injunctive or other equitable relief seeking to restrain such use or disclosure.
13.1 Neither party shall be liable for delays caused by fire, accident, labour dispute, war, insurrection, riot, act of government, act of God or any other cause reasonably beyond its control, but each party shall use all reasonable efforts to minimise the extent of any such delay.
13.2 NEC shall not be liable to the Client (or the Client’s customers) for any delay in performance or any failure in performance hereunder caused in whole or in part by reasons beyond the control of NEC, including any delay or failure caused or contributed to by the Client’s failure to furnish in a timely manner information, equipment, or materials necessary for NEC to perform the Services.
14.1 The Client agrees not to hire or attempt to hire or directly contract employees or subcontractors of NEC that have been directly or indirectly involved in providing Products, Services or Support during the term of this Agreement. In the event of such hiring or contracting the Client agrees to pay NEC the sum of $15,000, being a reasonable estimate of the cost of finding and recruiting a suitable replacement.
15 Independent Contractor Status
15.1 The parties hereto are independent contractors and nothing in this Agreement shall be deemed to create any form principal-agent relationship, employer-employee relationship or joint venture between the parties hereto.
16.1 Changes to this Agreement need to be agreed in writing by both parties.
17.1 Neither party may assign its rights or obligations hereunder (except to subsidiaries or affiliates) without the prior written consent of the other party, which consent will not be unreasonably withheld.
18 Governing Law
18.1 This Agreement will be governed by and is construed in accordance with the laws of Victoria, without regard to its rules concerning conflicts of laws. The parties irrevocably submit to the exclusive jurisdiction of the courts Victoria.
19.1 In witness whereof, the parties have caused this Agreement to be executed by their respective duly authorised officers as of the indicated date.