E-Bit Systems Terms and Conditions of Trade

 

E-Bit Systems Pty Ltd ABN 99 090 111 425, of Suite 59-61, 23 Narabang Way, Belrose, NSW 2085 (“E-Bit Systems”) and the party specified as the “Customer” in Attachment A (the “Customer”) for the supply of Deliverables. It is hereby agreed as follows:

 

Part A – Interpretation and Definitions

1. Definitions

In this agreement, unless the contrary intention appears:

“Acceptance Tests” means the tests (if any) described in the Proposal or as is agreed in writing between the Parties;

“Agreement” means this Agreement for the supply of the Deliverables;

“Application” means the computer software application or Licensed Software or Third Party Software or Developed Software, as the context dictates, more particularly described in the Proposal;

“Business Hours” means 8:30 am to 5:30 pm Monday to Friday excluding Public Holidays or hours as specified in the Proposal;

“Charges” means the costs and fees including, but not limited to, initial setup costs, monthly subscription fees, licence costs, consulting fees, support costs, monthly fees and any other amounts, as defined in the Proposal, payable by the Customer to E-Bit Systems pursuant to this Agreement;

“Confidential Information” means the confidential information of a Party which relates to the subject matter of this Agreement and includes information relating to:

a. the technology and design of the Deliverables;

b. the personnel, policies or business strategies of E-Bit Systems;

c. the terms upon which the Deliverables have been supplied or installed pursuant to this Agreement;

“Customer Access Facilities” means telecommunications, networks, systems and any other facilities used or required by or on behalf of Customer for accessing and making use of any Services other than the facilities actually provided by E-Bit Systems under this Agreement;

“Customer Data” means data to which E-Bit Systems is provided access by Customer for the purposes of the Services;

“Deliverables” means the Equipment and/or Application and/or Services, more particularly described in the Proposal, which are to be supplied or developed by E-Bit Systems pursuant to this Agreement;

“Developed Software” means bespoke software which is to be developed, configured or distributed as per the Proposal by E-Bit Systems;

“Documentation” means operating manuals and other printed materials including users’ manuals, programming manuals, modification manuals, flow charts, process flows, drawings and software listings which are designed to assist or supplement the understanding or application of the Application or components thereof;

“Emergency Remedial Maintenance” means remedial maintenance carried out at a time other than E-Bit Systems normal Business Hours or remedial maintenance which requires a response time shorter than the response time specified in the Proposal;

“Equipment” means the hardware, more particularly described in the Proposal, which is to be supplied to the Customer by E-Bit Systems pursuant to this Agreement;

“Equipment Maintenance Services” means maintenance services for a fixed term in respect of the Maintained Equipment at scheduled and unscheduled intervals carried out during Business Hours in order to ensure that the Maintained Equipment remains in working order. It includes, but is not limited to, checking, monitoring, configuration, updates, repairs, lubrication, adjustment and replacement of unserviceable or defective parts. It also includes; Emergency Remedial Maintenance.

“Force Majeure” means a circumstance beyond the reasonable control of the Parties which results in a Party being unable to observe or perform on time an obligation under this Agreement. Such circumstances shall include but shall not be limited to:

a. internet access failure caused by amongst other things, data corruption or unlawful tampering or any third party action or equipment that results in denial of service or access request overload, provided such failure is not contributed to by the party responsible for performing the obligation or providing the access.

b. acts of God, lightning strikes, earthquakes, floods, storms, explosions, fires and any natural disaster;

c. acts of war, acts of public enemies, terrorism, riots, civil commotion, malicious damage, sabotage and industrial disputes not caused by the party affected by the dispute;

“Implementation Plan” means the plan which specifies the Phases and timeframe for delivery of the Deliverables as specified in the Proposal or as agreed in writing thereafter by both Parties;

“Intellectual Property Rights” means copyright, trade mark, design, patent, network design, systems design, solution design, integrated system, business and domain name rights;

“Initial Licence Term” means the duration of the initial period of the licence of the Licensed Software, as specified in the Proposal;

“Licensed Software” means the software, designated in the Proposal, consisting of a set of instructions or statements in machine readable medium and any enhancement, modification, update or new release of the software or part thereof;

“Maintained Equipment” means the equipment specified in the Proposal which is to be the subject of the Equipment Maintenance Services;

“Party” means either E-Bit Systems or the Customer as the context dictates;

“Phase” means an implementation phase as specified in the Implementation Plan;

“Proposal” means the final order by the Customer for the Deliverables which has been signed off by the Parties;

“Service Level” means the level of performance to be achieved by the Application and the level of Services, as specified in the Proposal, to be provided by E-Bit Systems;

“Services” means any service more particularly described in the Proposal. It includes, but is not limited to, managed services, backup services, system integration, virtual desktops, hosting services, telecommunication and network infrastructure, helpdesk services and consulting services, which may include design, development, implementation, enhancements, setup, maintenance, support and training services;

“Site” means the location for delivery, installation, maintenance, provision, updates and enhancements of the Deliverables as specified in the Proposal;

“Third Party Agreement” means an agreement procured by E-Bit Systems between a third party and the Customer for the supply of Third Party Software;

“Third Party Software” means software, more particularly described in the Proposal, which is to be licensed to the Customer direct by a third party pursuant to a Third Party Agreement;

“Warranty Period” means the warranty period for the Deliverables.

2. Interpretation

2.1. In this Agreement, unless the contrary intention appears:

d. words in the singular number include the plural and vice versa;

e. words importing a gender include any other gender;

f. a reference to a person includes bodies corporate and unincorporated associations and partnerships;

g. a reference to a clause is a reference to a clause or subclause of this Agreement;

h. a reference to a subclause is a reference to a subclause of the clause in which that reference is made;

i. where a word or phrase is given a particular meaning, other parts of speech and grammatical forms of that word or phrase have corresponding meanings;

j. monetary references are references to Australian currency.

2.2. No provision of this Agreement will be interpreted as attempting to exclude or limit, or having the effect of excluding or limiting, the operation of subsection 47B(3) or section 47C, 47D, 47E or 47F, of the Copyright Act 1968 (Cth). Any provision which is inconsistent with any such subsection or section will be read down or otherwise deemed to be varied to the extent necessary to preserve the operation of such subsection, section or sections.

 

Part B – General Provisions

3. Ordering procedure

3.1. E-Bit Systems shall provide the Customer with the Deliverables specified in any authorised E-Bit Systems Proposal.

3.2. Once signed by both Parties, the Proposal will form part of this Agreement.

4. Charges

4.1. The Customer shall pay the Charges and any Additional Charges at the rate and manner specified in the Proposal.

4.2. The Customer shall pay E-Bit Systems such Additional Charges as E-Bit Systems invoices from time to time for the supply of Deliverables not expressly required by this Agreement or (without limiting E-Bit Systems remedies at law) which were either required by Customer or incurred by E-Bit Systems as a result of carrying out any works which were reasonably appropriate in connection with the Customer’s non-performance of this Agreement.

4.3. Where more than one Customer has entered into this Agreement, the Customers shall be jointly and severally liable for all Charges.

4.4. The Customer is solely responsible for direct payment of the Third Party Software licence fees and will fully indemnify E-Bit Systems in respect of any failure to make such payments.

4.5. If the Customer disputes the whole or any portion of the amount claimed in an invoice submitted by E-Bit Systems, the Customer shall pay the portion of the amount stated in the invoice which is not in dispute and shall notify E-Bit Systems in writing (within seven days of receipt of the invoice) of the reasons for disputing the remainder of the invoice. If it is resolved that some or all of the amount in dispute ought properly to have been paid at the time it was invoiced, then the Customer shall pay the amount finally resolved together with interest at a rate of 2.5% per month on that amount in accordance with the terms of payment set out in the Proposal.

4.6. The Customer shall pay E-Bit Systems interest on any amount due and not paid by the Customer within the time required by this Agreement at a rate of 2.5% per month.

4.7. In the event that:

a. the supply of the Deliverables is delayed;

b. E-Bit Systems is required to supply the Deliverables in circumstances other than those expressly or reasonably assumed or contemplated in a transaction of this nature; or for reasons other than a breach of this Agreement by E-Bit Systems, then E-Bit Systems shall be entitled to payment of an Additional Charge in respect of additional resources reasonably utilised in order to fulfill its obligations under this Agreement.

4.8. The Charges are exclusive of taxes, duties and charges imposed or levied in Australia or overseas in connection with the supply of the Deliverables. Without limiting the foregoing, the Customer shall be liable for the net amount of any new taxes, duties or charges imped subsequent to the date of this Agreement in respect of the Deliverables.

5. Exclusions

5.1. E-Bit Systems may agree to provide, on request from the Customer, the Deliverables expressly excluded or not included in the Proposal. In this event, E-Bit Systems is entitled to make an Additional Charge and revise the Implementation Plan. This will be considered a variation of the Agreement.

6. Access to site

6.1. The Customer shall at its own expense prepare the Site to enable E-Bit Systems to comply with its obligations under this Agreement. In so doing, the Customer shall comply with any directions or specifications issued by E-Bit Systems.

6.2. E-Bit Systems shall, upon request from the Customer, supply such information and assistance as E-Bit Systems considers reasonable and necessary to enable the Customer to prepare the Site.

6.3. The Customer shall, where relevant, ensure E-Bit Systems has full and safe access to the Site and any necessary equipment, materials and information. The Customer shall also ensure that E-Bit Systems is provided with all facilities, services and accessories reasonably required to enable E-Bit Systems to comply with its obligations under this Agreement.

6.4. The Customer shall, where relevant provide on request a suitably qualified or informed representative, agent or employee to accompany E-Bit Systems and to advise E-Bit Systems on project requirements, access, security procedures and any other matter within the Customer’s knowledge or control which will assist E-Bit Systems in complying with its obligations under this Agreement.

6.5. The Customer shall ensure E-Bit Systems is granted all reasonable access, including necessary security clearances, for the purposes of complying with its obligations under this Agreement.

6.6. If E-Bit Systems delays delivery or installation of the Deliverables due to inadequate preparation of the Site or access to the Site, the Customer shall be liable to E-Bit Systems for all reasonable costs and expenses incurred by E-Bit Systems directly or indirectly as a result of such delay.

7. Confidentiality

7.1. A Party shall not, without the prior written approval of the other Party, disclose the other Party’s Confidential Information.

7.2. A Party shall not be in breach of subclause 1 in circumstances where it is legally compelled to disclose the other Party’s Confidential Information.

7.3. Each Party shall take all reasonable steps to ensure that its employees and agents, and any sub-contractors engaged for the purpose of this Agreement, do not make public or disclose the other Party’s Confidential Information.

7.4. Notwithstanding any other provision of this clause, E-Bit Systems may disclose the terms of this Agreement (other than Confidential Information of a technical nature) to its related companies, solicitors, auditors, insurers and accountants.

7.5. This clause shall survive the termination of this Agreement.

8. Intellectual property rights

8.1. E-Bit Systems warrants that it has the right to grant the applicable licences for the Deliverables to the Customer.

8.2. Subject to subclauses 3, 4 and 5, E-Bit Systems shall indemnify the Customer against liability under any final judgment in proceedings brought by a third party against the Customer which determine that the Customer’s use of the Deliverables constitutes an infringement in Australia of any Intellectual Property Rights in the Deliverables.

8.3. E-Bit Systems shall not be required to indemnify the Customer as provided in subclause 1 unless the Customer:

a. notifies E-Bit Systems in writing as soon as practicable of any infringement, suspected infringement or alleged infringement;

b. gives E-Bit Systems the option to conduct the defence of such a claim, including negotiations for settlement or compromise prior to the institution of legal proceedings;

c. provides E-Bit Systems with reasonable assistance in conducting the defence of such a claim;

d. permits E-Bit Systems to modify, alter or substitute the infringing part of the Deliverables at its own expense in order to avoid continuing infringement, or authorises E-Bit Systems to procure for the Customer the authority to continue the use and possession of the infringing Deliverables.

8.4. E-Bit Systems shall not indemnify the Customer to the extent that an infringement, suspected infringement or alleged infringement arises from:

a. use of the Deliverables in combination by any means and in any form with other goods not specifically approved by E-Bit Systems;

b. use of the Deliverables in a manner or for a purpose not reasonably contemplated or not authorised by E-Bit Systems;

c. modification or alteration of the Deliverables without the prior written consent of E-Bit Systems; or

d. any transaction entered into by the Customer relating to the Deliverables without E-Bit Systems’ prior consent in writing.

8.5. In the event that proceedings are brought or threatened by a third party against the Customer alleging that the Customer’s use of the Deliverables constitutes an infringement of Intellectual Property Rights, E-Bit Systems may at its option and at its own expense conduct the defense of such proceedings. The Customer shall provide all necessary co-operation, information and assistance to E-Bit Systems in the conduct of the defense of such proceedings.

8.6. The Customer shall indemnify E-Bit Systems against any loss, costs, expenses, demands or liability, whether direct or indirect, arising out of a claim by a third party alleging such infringement if:

a. the claim arises from an event specified in subclause 3; or

b. the ability of E-Bit Systems to defend the claim has been prejudiced by the failure of the Customer to comply with any requirements of subclauses 2 or 4.

8.7. Subject to Confidentiality clause, E-Bit Systems owns all rights, including intellectual property rights, in anything developed or delivered under this Agreement.

9. Implied terms

9.1. Subject to subclause 2, any condition or warranty which would otherwise be implied in this Agreement is hereby excluded.

9.2. Where legislation implies in this Agreement any condition or warranty, and that legislation avoids or prohibits provisions in a contract excluding or modifying the application of or exercise of or liability under such condition or warranty, the condition or warranty shall be deemed to be included in this Agreement. However, the liability of E-Bit Systems for any breach of such condition or warranty shall be limited, at the option of E-Bit Systems, to one or more of the following:

a. if the breach relates to goods:

i. the replacement of the goods or the supply of equivalent goods;

ii. the repair of such goods;

iii. the payment of the cost of replacing the goods or of acquiring equivalent goods: or

iv. the payment of the cost of having the goods repaired; and

b. if the breach relates to services:

i. the supplying of the services again; or

ii. the payment of the cost of having the services supplied again.

c. E-Bit Systems total liability to the Customer will not exceed the initial setup fees as per the Proposal paid to E-Bit Systems in respect of Deliverables which have caused the liability.

10. Liability

10.1. Except in relation to liability for personal injury (including sickness and death), E-Bit Systems is under no liability to the Customer in respect of any loss or damage (including consequential loss or damage) which may be suffered or incurred or which may arise directly or indirectly in respect of Deliverables supplied pursuant to this Agreement or in respect of a failure or omission on the part of E-Bit Systems to comply with its obligations under this Agreement.

10.2. Subject to subclause 3, the Customer warrants that it has not relied on any representation made by E-Bit Systems which has not been stated expressly in this Agreement, or upon any descriptions, illustrations or specifications contained in any document including catalogues or publicity material produced by E-Bit Systems.

10.3. The Customer acknowledges that to the extent E-Bit Systems has made any representation which is not otherwise expressly stated in this Agreement, the Customer has been provided with an opportunity, to independently verify the accuracy of that representation.

10.4. The Customer acknowledges and agrees that prior to entering into this Agreement it has been given a reasonable opportunity to examine and satisfy itself regarding all Deliverables which are the subject of this Agreement and that prior to entering into this Agreement it has availed of that opportunity;

10.5. E-Bit Systems does not warrant that the Deliverables provided under this Agreement:

a. are error fee, virus free or bug free;

b. will operate in an uninterrupted manner;

c. will meet the Customer’s needs;

d. will provide any function not designed by it or contained in any specifications supplied by E-Bit Systems.

10.6. E-Bit Systems is not under any liability to the Customer for any loss or damage, loss of business, profits or revenue howsoever arising out of the use of and/or breakdown of the Deliverables.

10.7. 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, the operations of Part 4 of the Civil Liability Act 2002 (NSW) and of any laws having a similar effect in the Commonwealth and other States and Territories of Australia are excluded and have no application or effect insofar as any of them would apportion liability to E-Bit Systems which would not have been so apportioned but for such laws.

11. Termination

11.1. This Agreement commences on the date that E-Bit Systems Deliverables are first provided to the Customer and shall continue unless terminated in accordance with this Agreement.

11.2. Without limiting the generality of any other clause in this Agreement, E-Bit Systems may terminate this Agreement immediately by notice in writing if:

a. the Customer is in breach of any terms of this Agreement and such breach is not remedied within thirty (30) days of written notice by E-Bit Systems;

b. the Customer becomes, threatens or resolves to become or is in jeopardy of becoming subject to any form of insolvency administration;

c. the Customer, being a partnership, dissolves, threatens or resolves to dissolve or is in jeopardy of dissolving;

d. the Customer, being a natural person, dies; or

e. the Customer ceases or threatens to cease conducting its business in the normal manner.

11.3. If notice is given to the Customer pursuant to subclause 2, E-Bit Systems may, in addition to terminating the Agreement:

a. repossess the Deliverables if payment is not complete;

b. retain any moneys paid;

c. charge a reasonable sum for work performed in respect of which work or sum has been previously charged;

d. be regarded as discharged from any further obligations under this Agreement; and

e. pursue any additional or alternative remedies provided by law.

11.4. If the Customer is not under a fixed term agreement for the Deliverables as per the Proposal, the Customer may at any time terminate this Agreement on 30 days notice in writing to E-Bit Systems provided that in the event of such termination, all payments due at the end of the 30 day notice period will be immediately payable and all amounts paid by the Customer to E-Bit Systems may be retained by E-Bit Systems.

11.5. If the Customer has a fixed term agreement for the Deliverables as per the Proposal, in the event of an early termination the Customer will pay E-Bit Systems a termination fee calculated equal to the balance of the monthly Charges to the end of the term as specified in the Proposal.

12. Force majeure

12.1. Neither Party shall be liable for any delay or failure to perform its obligations pursuant to this Agreement if such delay is due to Force Majeure.

12.2. If a delay or failure of a Party to perform its obligations is caused or anticipated due to Force Majeure, the performance of that Party’s obligations will be suspended.

12.3. If a delay or failure by a Party to perform its obligations due to Force Majeure exceeds sixty (60) days, either Party may immediately terminate the Agreement on providing notice in writing to the other Party.

12.4. If this Agreement is terminated pursuant to subclause 3, E-Bit Systems shall refund moneys previously paid by the Customer pursuant to this Agreement for Deliverables not provided by E-Bit Systems to the Customer. Payment obligations to third party related to Deliverables being supplied will be passed onto and will remain the liability of the Customer.

12.5. This clause does not apply to any payment obligation by the Customer.

13. Sub-contracts

13.1. E-Bit Systems may, without the consent of the Customer, engage individuals on a sub-contract or consultancy basis, whether or not operating under a corporate structure, to assist in the provision of services pursuant to this Agreement.

14. Status

14.1. Neither E-Bit Systems nor its personnel are agents or employees of the Customer by virtue of this Agreement.

15. Entire agreement

15.1. This Agreement constitutes the entire agreement between the Parties and supersedes all prior representations, agreements, statements and understandings, whether verbal or in writing.

16. Precedence

16.1. The documents comprising this Agreement shall he read in the following order of precedence:

a. the Proposal;

b. the clauses of this Agreement.

16.2. Where any conflict occurs between the clauses of the Agreement and the Proposal, the clauses of the Agreement shall where possible be read down to resolve such conflict. If the conflict remains incapable of resolution by reading down, the conflicting provisions shall be severed from the clauses of the Agreement without otherwise diminishing the enforceability of the remaining provisions of this document.

17. Assignment and novation

17.1. The benefit of this Agreement shall not be assigned by the Customer without E-Bit Systems’ written consent.

17.2. E-Bit Systems may consent to the assignment or novation of this Agreement by the Customer subject to such conditions as it chooses to impose.

18. Waiver

18.1. No right under this Agreement shall be deemed to be waived except by notice in writing signed by each Party.

18.2. A waiver by E-Bit Systems pursuant by subclause 1 will not prejudice its rights in respect of any subsequent breach of the Agreement by the Customer.

18.3. Subject to subclause 1, any failure by E-Bit Systems to enforce any clause of this Agreement, or any forbearance, delay or indulgence granted by E-Bit Systems to the Customer, will not be construed as a waiver of E-Bit Systems’ rights under this Agreement.

19. Variation

19.1. In the event that there is a change in the scope or timing or complexity of Deliverables it will be treated as a variation of the agreement;

a. E-Bit Systems will notify the Customer of the change;

b. E-Bit Systems will revise the Implementation Plan

c. E-Bit Systems shall be entitled to payment of an Additional Charge in respect of additional resources reasonably utilised in order to fulfill its obligations under this Agreement.

19.2. E-Bit Systems may review this Agreement at any time. If following, such review, there is to be a change to this Agreement, then Customer will be notified of such change. The change will take effect after the Agreement is signed by the Parties.

19.3. If the Customer accepts the variations, the Agreement shall be deemed to be so amended from the date of acceptance.

20. Disputes

20.1. Any dispute arising in connection with this Agreement which cannot be settled by negotiation between the Parties or their representatives shall be submitted to arbitration in accordance with the Rules for the Conduct of Commercial Arbitrations for the time being of the Institute of Arbitrators and Mediators Australia. During such arbitration, both Parties may be legally represented.

20.2. Prior to referring a matter to arbitration pursuant to subclause 1, the Parties shall in good faith explore the prospect of mediation.

20.3. Nothing in this clause shall prevent a Party from seeking urgent equitable relief before an appropriate court.

21. Survival of agreement

21.1. Subject to any provision to the contrary, this Agreement shall ensure to the benefit of and be binding upon the Parties and their successors, trustees, permitted assigns or receivers but shall not ensure to the benefit of any other persons.

21.2. The covenants, conditions and provisions of this Agreement which are capable of having effect after the expiration of the Agreement shall remain in full force and effect following the expiration of the Agreement.

22. Severability

22.1. If any provision of this Agreement is held invalid, unenforceable or illegal for any reason, the Agreement shall remain otherwise in full force apart from such provisions which shall be deemed deleted.

23. Lawful directions

23.1. In the discharge of its duties, E-Bit Systems shall comply with all reasonable resolutions, regulations and directions of the Customer as may lawfully be given from time to time as to the nature and scope of the Deliverables provided.

23.2. Nothing in subclause 1 shall affect E-Bit Systems’ right to exercise it own judgment and to utilise its skills as it considers most appropriate in order to achieve compliance with the said resolutions, regulations and directions or otherwise to comply with its obligations under this Agreement.

24. Governing law

24.1. The laws of New South Wales, Australia, govern this Agreement.

24.2. Notices under this Agreement may be delivered by hand, by email or by facsimile to the addresses specified in the Proposal.

25. Execution

25.1. This Agreement shall be of no force and effect until signed by both parties.

 

Part C – Supply and Implementation of Equipment

26. Equipment specifications

26.1. E-Bit Systems may substitute any component of the Equipment or part of any component of the Equipment prior to delivery without consultation with the Customer and may in any other respect modify the Equipment if, in the reasonable opinion of E-Bit Systems, the said substitution or modification:

a. will not adversely affect the performance or capacity of the Equipment;

b. will not alter the configuration of the Equipment in any material respect; and

c. will not otherwise materially affect the obligations of E-Bit Systems or prejudice the rights of the Customer under this Agreement.

26.2. If a substitution or modification is made under subclause 1, E-Bit Systems shall notify the Customer on or prior to delivery.

27. Delivery & Installation of equipment

27.1. E-Bit Systems will use reasonable endeavours to deliver and/or install the Equipment to the Site as per the Implementation Plan specified in the Proposal. In the absence of agreement to the contrary, the delivery & installation shall be affected during the Business Hours.

27.2. If the Customer wishes the Equipment to be delivered and/or installed to a location other than the Site, it shall make a request in writing to E-Bit Systems not later than thirty (30) days (or such other period as is agreed between the Parties) prior to the delivery schedule as per the Implementation Plan. E-Bit Systems may at its sole discretion determine whether to agree to such a request and what conditions, if any, shall apply in the event of it agreeing to such a request.

27.3. If the Customer requests delivery and/or installation of the Equipment to be made in advance or postponed beyond the delivery schedule as per the Implementation Plan, E-Bit Systems shall use its reasonable endeavors to re-schedule delivery accordingly but shall otherwise be under no obligation to comply with the Customer’s request.

27.4. In the event E-Bit Systems accedes to a request made by the Customer pursuant to subclauses 2 or 3, E-Bit Systems may make such Additional Charge as it reasonably considers being appropriate to reflect the direct impact upon E-Bit Systems’ resources of complying with such request.

27.5. The Customer shall provide E-Bit Systems with such assistance, including the provision of personnel and facilities, as E-Bit Systems reasonably considers necessary to ensure satisfactory delivery and/or installation of the Equipment. The Customer shall ensure E-Bit Systems is granted all reasonable access, including necessary security clearances, for the purposes of complying with this subclause.

27.6. If E-Bit Systems requests permission to deliver the Equipment prior to the delivery schedule as per the Implementation Plan, the Customer shall use its best endeavors to prepare the Customer Site and to do all other things necessary to enable it to comply with the request and to accept early delivery.

28. Title in equipment

28.1. Subject to any other express provision of this Agreement to the contrary, title in the Equipment will pass to the Customer upon full payment in cleared funds of the applicable Charges, any Additional Charges and any interest due under this Agreement.

29. Risk in relation to equipment

29.1. Risk of loss or damage to the Equipment passes to the Customer upon delivery of the Equipment to the Site.

29.2. Between the delivery of the Equipment to the Site and the passing of title pursuant to this Agreement, the Customer shall insure the Equipment with a reputable insurance company in favour of E-Bit Systems in an amount equal to its replacement cost against all risks of loss or damage due to any cause.

29.3. If any of the Equipment are damaged or destroyed between the delivery of the Equipment to the Site and the passing of title pursuant to this Agreement, E-Bit Systems is entitled to receive all insurance proceeds payable for the Equipment. This Agreement is sufficient evidence of E-Bit Systems rights to receive the insurance proceeds without the need for any person dealing with E-Bit Systems to make further enquiries.

30. Warranty of equipment

30.1. For Equipment not manufactured by E-Bit Systems, the warranty shall be the current warranty provided by the manufacturer of the Equipment. E-Bit Systems shall not be bound by nor be responsible for any term, condition, representation or warranty other than that which is given by the manufacturer of the Equipment.

30.2. To the extent permitted by statue, no warranty is given by E-Bit Systems as to the quality or suitability of the Equipment for any purpose and any implied warranty, is expressly excluded. E-Bit Systems shall not be responsible for any damage to the Equipment, or caused by the Equipment, or any part thereof however arising.

30.3. The Client shall inspect the Goods on delivery and shall within seven (7) days of delivery (time being of the essence) notify E-Bit Systems of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Client shall afford opportunity to inspect the Goods within a reasonable time following delivery if the Client believes the Goods are defective in any way. If the Client fails to comply with these provisions the Goods shall be presumed to be free from any defect or damage. For defective Goods, which E-Bit Systems has agreed to in writing that the Client is entitled to reject, liability is limited to either (at E-Bit Systems discretion) replacing the Goods or repairing the Goods except where the Client has acquired Goods as a consumer within the meaning of the Trade Practices Act 1974 (CWlth) or the Fair Trading Acts of the relevant state or territories of Australia, and is therefore also entitled to, at the consumer’s discretion either a refund of the purchase price of the Goods, or repair of the Goods, or replacement of the Goods. Goods will not be accepted for return other than in accordance with this clause.

 

Part D – Maintenance of Equipment

31. Duration of equipment maintenance services

31.1. The Equipment Maintenance Services shall be provided for the term specified in the Proposal.

32. Substitution of maintained equipment

32.1. The Customer shall not substitute the Maintained Equipment or remove the Maintained Equipment from the Site without the prior written consent of E-Bit Systems. If such substitution or removal is made or proposed, E-Bit Systems may at its option:

a. amend the Charges;

b. make an Additional Charge; or

c. terminate the Agreement without further obligation to the Customer.

33. Equipment maintenance

33.1. E-Bit Systems shall perform Equipment Maintenance Services at the Site at such frequency and duration as it considers necessary to ensure the Maintained Equipment remains in good working order.

33.2. Unless specified to the contrary in the Proposal, Equipment Maintenance Services may be carried out by E-Bit Systems during Business Hours, subject to a prior appointment having been made with the Customer.

33.3. The Customer shall not refuse permission for the performance of the Equipment Maintenance Services pursuant to subclause 2 except on reasonable grounds of convenience or security. In the event that permission for the performance of the Equipment Maintenance Services is refused by the Customer on any grounds:

a. the Customer shall indemnify E-Bit Systems in respect of any losses or liabilities incurred; and

b. E-Bit Systems shall be excused from performance of its obligations under this Agreement to the extent that performance becomes impossible or impractical as a result of such refusal.

34. Emergency remedial maintenance

34.1. E-Bit Systems shall perform Emergency Remedial Maintenance on-site or off-site, according to E-Bit Systems’ opinion as to the most practicable means of affecting the relevant services.

34.2. Upon receipt of a request for Emergency Remedial Maintenance, E-Bit Systems shall use reasonable endeavours to provide a maintenance personnel at the Site to assess the services required within the time frame specified by the Customer and, in any event, as soon as practicable.

35. Exclusions from Equipment Maintenance Services

35.1. The Equipment Maintenance Services do not include:

a. effecting changes or alterations to the configuration or specifications of the Maintained Equipment;

b. re-installation, moving or removing of equipment, devices or attachments;

c. repair of damage arising from the re-installation, moving or removing of the Maintained Equipment by a person other than E-Bit Systems;

d. repair of damage arising from changes, alterations, additions or modifications effected by a person other than E-Bit Systems;

e. repair of damage arising from the act, error, fault, neglect, misuse or omission of the Customer or its servants, agents, contractors or invitees or any other person whether or not that person is under the control or direction or authority of the Customer;

f. repair of damage caused by the failure of electrical power, air conditioning, humidity control or any environmental factor;

g. repair of damage caused by the operation of the Maintained Equipment by a person not authorised by the Customer;

h. repair of damage caused by the operation of the Maintained Equipment other than in accordance with recommended operating procedures or otherwise than in accordance with the directions or recommendations of the manufacturer or E-Bit Systems or their representative servants or agents;

i. rectification of hazardous conditions which pose a threat to the safety of E-Bit Systems, its personnel or its equipment;

j. furnishing or maintenance of accessories, attachments, supplies, consumables or other such items associated with the Maintained Equipment;

k. re-installing, moving or removing the Maintained Equipment or accessories, attachments, supplies or items associated with the Maintained Equipment;

l. repair of damage arising from the Customer’s failure to comply with any provision of this Agreement;

m. maintenance made more difficult by the Customer’s failure to comply with any provision of this Agreement;

n. software support; or

o. maintenance which is determined by E-Bit Systems not to be related to the Maintained Equipment.

35.2. If the Customer so requests in writing, E-Bit Systems may at its option provide any of the services referred to in subclause I. E-Bit Systems may make an Additional Charge for providing such services.

36. Access to maintained equipment

36.1. The Customer shall ensure E-Bit Systems’ maintenance personnel have full and safe access to the Maintained Equipment at all reasonable times for the purpose of providing the Equipment Maintenance Services. The Customer shall also ensure that such access conforms to any specifications issued by E-Bit Systems from time to time.

36.2. If reasonably requested by E-Bit Systems, the Customer shall provide a suitably qualified or informed representative to accompany E-Bit Systems’ personnel and to provide such advice or assistance to those personnel as may be necessary in order to enable E-Bit Systems to access the Maintained Equipment and otherwise effectively perform the Equipment Maintenance Services.

 

Part E – Supply and Implementation of Application

37. Licensed Software

37.1. E-Bit Systems shall deliver the Licensed Software to the Customer, and install the Licensed Software, as specified in the Proposal.

37.2. E-Bit Systems may substitute or modify any Licensed Software or related Documentation prior to delivery without consultation with the Customer if E-Bit Systems is of the reasonable opinion that the said substitution or modification:

a. will not adversely affect the performance or capacity of the Licensed Software;

b. will not otherwise materially affect the obligations of E-Bit Systems or prejudice the rights of the Customer under this Agreement.

37.3. If a substitution or modification is made under subclause 2, E-Bit Systems shall notify the Customer on or prior to delivery.

38. Term of licence

38.1. E-Bit Systems hereby grants the Customer a non-exclusive, non-transferable licence on the Licensed Software for the Initial Licence Term.

38.2. At the sole discretion of E-Bit Systems, the licence may be renewed for subsequent terms of similar duration to the Initial Licence Term. The Customer shall provide at least ninety (90) days’ notice in writing prior to the expiry of the Initial Licence Term or any subsequent term if it wishes to renew the licence pursuant to this subclause and will liable for the applicable renewal fee.

39. Licence conditions

39.1. Licensed Software terms of original software vendor will apply.

39.2. The Customer may only use the Licensed Software in accordance with the normal operating procedures as notified by E-Bit Systems.

39.3. The Licensed Software may only be used pursuant to this Agreement:

a. by the Customer;

b. at the Site;

c. on the designated equipment for Licensed Software and;

39.4. At the sole risk of the Customer, the Licensed Software may be used on alternative equipment if E-Bit Systems has given its consent in writing to such alternate use.

39.5. The Customer shall not copy, alter, modify or reproduce the Licensed Software without prior written consent from E-Bit Systems.

39.6. In addition to any other remedies available to E-Bit Systems under this Agreement or otherwise, any unauthorised use, alteration, modification, reproduction, publication, disclosure or transfer of the Licensed Software will entitle E-Bit Systems to any available equitable remedy against the Customer.

39.7. Except to the extent specified to the contrary in this Agreement, E-Bit Systems shall not be obliged to support the Licensed Software, whether by providing advice, training, error-correction, modifications, updates, new releases or enhancements or otherwise.

39.8. The Customer acknowledges that there is no transfer of title or ownership to the Customer of the Licensed Software or the Documentation or any modifications, updates or new releases of the Licensed Software.

40. Third party software

40.1. Subject to subclause 2, E-Bit Systems shall procure the Third Party Software for the purposes of delivery and installation in accordance with the Implementation Plan specified in the Proposal.

40.2. The Third Party software is supplied subject to the terms and conditions of the relevant Third Party Agreement. The Customer undertakes to comply with the terms of the Third Party Agreement and, without limiting the foregoing, shall fully indemnify E-Bit Systems in respect of any liability to a third party arising out of breach by the Customer of terms of the Third Party Agreement.

40.3. E-Bit Systems offers no warranty in respect of the Third Party Software and accepts no responsibility for a failure by the Third Party Software to conform to the relevant product specifications or warranties or for any failure of the system to comply with the specifications as a consequence of defect in the Third Party Software.

41. Third party agreements

41.1. The Customer shall enter into such Third Party Agreement as specified in the Proposal.

41.2. E-Bit Systems shall, to the extent specified in the Proposal, negotiate and procure such Third Party Agreement on behalf of the Customer but does not warrant consistency in all respects between the terms of the Third Party Agreement and the terms of this Agreement.

41.3. The Customer shall fully indemnify the E-Bit Systems for loss or damage suffered in respect of any default by the Customer or a third party under a Third Party Agreement.

42. Developed Software

42.1. E-Bit Systems will, in accordance to the specifications and Implementation Plan, develop, integrate and install the Developed Software.

42.2. The Customer acknowledges that, unless and to the extent stipulated to the contrary in the Proposal, E-Bit Systems remains the sole owner of the Developed Software.

42.3. If the Customer has fully complied with this Agreement, and subject to any restrictions specified in the Proposal, E-Bit Systems shall grant the Customer a non-exclusive and non-transferable license to use the Developed Software on the Designated Equipment.

43. Warranty for Developed Software

43.1. For Developed Software, the warranty shall be for sixty (60) days.

43.2. For the duration of the Warranty Period, E-Bit Systems warrants that the Developed Software will operate in conformity with the Documentation in all material respects. E-Bit Systems will rectify any deficiency in the customisation which constitutes a breach of this subclause if such deficiency is noted to it in writing during the Warranty Period. This represents E-Bit Systems total obligation and the Customer’s sole remedy in respect of any such breach of warranty.

43.3. If at any time during the Warranty Period the Customer believes there is a defect in the Developed Software such that the customisation does not comply with or cannot be used in conformity with the Documentation in all material respects, the Customer shall notify E-Bit Systems of such perceived defect.

43.4. E-Bit Systems shall investigate the perceived defect notified pursuant to subclause 3 and shall, upon the verification of the existence of the defect, rectify such defect without Additional Charge to the Customer.

43.5. If due investigation by E-Bit Systems of a defect reported pursuant to subclause 3 reveals that no such defect in fact exists, E-Bit Systems may make an Additional Charge in respect of such investigation.

43.6. E-Bit Systems shall not be liable under this clause to the extent that a defect is caused by the Customer or a third party, including the failure of the Customer or a third party to maintain the operating environment designated in the Documentation or to otherwise use the Developed Software in accordance with specifications issued by E-Bit Systems from time to time, whether in the Documentation or otherwise.

44. Installation of application

44.1. E-Bit Systems will install the Application as specified in the Proposal.

44.2. If, in the opinion of E-Bit Systems, the costs associated with the installation of the Application are greater than E-Bit Systems could have reasonably contemplated on execution of this Agreement and are greater than the costs which would normally be associated with a similar installation project, E-Bit Systems may make an Additional Charge.

45. Implementation plan

45.1. Any delay by E-Bit Systems in complying with the schedule specified in the Implementation Plan will not discharge the obligation of the Customer to pay the Charges invoiced by E-Bit Systems.

45.2. The Customer acknowledges that it may be impractical for E-Bit Systems to strictly adhere to the Phases and, further that it may not be prejudiced by E-Bit Systems’ failure to adhere strictly to all Phases. Any failure by E-Bit Systems to complete a phase within thirty (30) days of the due date will entitle the Customer to withhold applicable Charges due thereafter until that Phase has been completed. Subject to satisfactory completion of Acceptance Tests within the timeframe specified in the Proposal, the foregoing represents the Customer’s sole remedy in relation to delayed completion of a Phase.

45.3. Without limiting the foregoing, the Customer shall have no remedy against E-Bit Systems in relation to delayed completion of a Phase, or failure to complete a Phase, where such delay or failure is the direct or indirect result of any act or omission of the Customer or breach by the Customer of this Agreement.

45.4. If E-Bit Systems is unable to adhere to any Phase as a direct or indirect result of any act or omission of the Customer or breach by the Customer of this Agreement, E-Bit Systems may make an Additional Charge for time, overtime, travel, materials, resource rationalisation resulting directly or indirectly from such act or omission of the Customer; and

45.5. To the extent that implementation involves third parties discharging obligations pursuant to Third Party Agreements, E-Bit Systems does not warrant that such a third party will comply on the date specified in the Implementation Plan.

46. Acceptance tests

46.1. This clause shall only apply if it is specified in the Proposal or as is agreed in writing between the Parties that the Application is to be subject to Acceptance Tests.

46.2. Unless otherwise agreed between the Parties, the Customer shall test the Application in accordance with the Acceptance Tests within the period specified the Proposal (or such other period as is agreed in writing between the Parties). E-Bit Systems shall provide all reasonable assistance to enable the Customer to conduct the Acceptance Tests.

46.3. The Customer shall be responsible for the preparation of all necessary acceptance test data specified in or relevant to the Acceptance Tests.

46.4. E-Bit Systems shall be entitled to observe and, to the extent considered reasonable by E-Bit Systems, participate in the conduct of the Acceptance Tests.

46.5. In the event the Customer fails to complete the Acceptance Tests within the agreed timeframe for reasons other than delay caused solely by E-Bit Systems, the Customer will be deemed to have accepted the Application.

46.6. Upon satisfactory completion of the Acceptance Tests:

a. E-Bit Systems will, if requested by the Customer, provide a written summary of the Acceptance Tests and the results achieved during the Acceptance Tests; and

b. the Customer will within two (2) days (or such other period as is specified in the Acceptance Test) provide E-Bit Systems with written acknowledgment of acceptance of the Application.

47. Copying

47.1. Subject to subclause 2, the Customer shall not copy or reproduce the Application or Documentation by any means or in any form without prior written consent from E-Bit Systems.

47.2. The Customer may make one copy of the Application for the purpose of backup and security. The Customer shall acknowledge such copy as the property of E-Bit Systems. The terms of this Agreement, with the necessary modifications, apply to the said copy.

48. Modifications to application

48.1. The Customer shall not modify or alter the Application or merge all or any part of the Application with any other software without E-Bit Systems’ written permission.

49. Security

49.1. The Customer will be solely responsible for the use, supervision, management and control of the Application and related Documentation.

49.2. The Customer shall ensure that the Application is protected at all times from misuse, damage, destruction or any form of unauthorised use.

50. Updates and new releases

50.1. E-Bit Systems is under no obligation under this Agreement to provide updates or new releases except to the extent stated in the Proposal.

50.2. The Customer shall comply with a direction from E-Bit Systems to redeliver the Application to E-Bit Systems in substitution for an update or new release which provides functions equal to or better than the original Application.

50.3. Where an update or new release is provided pursuant to subclause 2:

a. E-Bit Systems shall deliver and install the new release as per the terms stated in the Proposal to the Customer;

b. this Agreement will continue to apply in all respects to the update or new release which shall be deemed to be the Application for the purpose of this Agreement; and

c. the Customer shall deal with all copies of the original Application in accordance with E-Bit Systems directions.

50.4. Without limiting the Customer’s obligations under this clause, and notwithstanding any other provisions of this Agreement, E-Bit Systems shall be under no liability to the Customer in the event of loss or damage suffered by the Customer as a result of its failure to comply with this clause, and the Customer shall indemnify E-Bit Systems in respect of any loss or damage suffered by E-Bit Systems as a result of the Customer’s failure to comply with this clause.

51. Support

51.1. Subsequent to acceptance by the Customer of the Application and expiry of the Warranty Period, E-Bit Systems shall not be required to correct errors or defects in the Application, or in any other respect support, or procure the support of, any component of the Application pursuant to this Agreement.

 

Part F – Supply of Services

52. Services

52.1. E-Bit Systems shall provide the Services on the terms set out in the Proposal.

52.2. Subject to otherwise complying with its obligations under this Agreement, E-Bit Systems shall exercise its independent discretion as to the most appropriate and effective manner of providing the Services and of satisfying the Customer’s expectations of those Services.

53. Service Level

53.1. E-Bit Systems shall provide the Services at the levels of service which meet the Service Level.

54. Provision of services

54.1. E-Bit Systems will provide Customer with Services in the manner specified in the Proposal.

54.2. Customer agrees that it may only acquire and make use of the Services for the sole purpose of meeting the internal business needs of its business.

54.3. E-Bit Systems may configure its systems and determine the nature and manner of its internal technical support in its discretion. Customer agrees to comply with such access and use procedures (including as to communications and security) as E-Bit Systems notifies Customer from time to time.

54.4. Other than as expressly permitted in the Proposal, Customer shall not do or permit anything to be done in respect of the Services. Without limiting the preceding sentence, Customer shall not:

a. Remove or modify any Application markings or any notice of E-Bit Systems rights:

b. make programs or materials resulting from the Services available to any third party for use in the third party’s business:

c. commercially exploit the Services (including by making it available to an third party) and;

d. distribute or transmit any part of the Services by any means.

54.5. Customer shall use reasonable efforts to prevent unauthorised third parties from accessing the Services.

54.6. 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 shall be no longer have any right to access all or any part of the Services.

54.7. Customer agrees not to make or permit any use of the Services in a way which is unacceptable. Use is unacceptable if:

a. It involves anything which is false, defamatory, harassing or obscene;

b. It involves unsolicited electronic messages;

c. It would involve the contravention of any person’s rights (including intellectual property rights);

d. It may offend any laws;

e. It may otherwise be regarded by E-Bit Systems, on reasonable grounds, to be unacceptable.

Customer agrees that E-Bit Systems 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.

55. Hosting services

55.1. For the term specified in the Proposal, E-Bit Systems will provide the hosting service

a. at a data centre as specified in the Proposal

b. E-Bit Systems will use its own discretion in determining all relevant environmental and infrastructure requirements for the data centre

c. E-Bit Systems may use the data centre to provide similar services to a third party without the prior written consent of the Customer. E-Bit Systems will use reasonable endeavors to ensure that the use of the data centre by the third party does not obstruct or interfere with the hosting service.

d. It is the Customer’s responsibility to procure all necessary consent, authority, licences and leases to enable E-Bit Systems to provide the hosting service.

e. The customer acknowledges that E-Bit Systems may at its discretion undertake maintenance, testing or repairs in relation to the Hosting Services and perform cleaning, maintenance or repairs or undertake improvement to the data centre.

56. Data and access

56.1. Customer agrees that it has sole responsibility for the accuracy, quality, integrity, legal compliance, reliability, appropriateness and rights ownership in all the Customer Data. Customer also agrees that there are limitations to the Application’s and Services’ ability to assist in Customer’s business. Customer agrees that the Application and Services does not detect faulty or aberrant input data, does 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

56.2. Independent and appropriate 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 Application or Services unless it has in place appropriate strategies, in addition to (and not reliant on) its use of the Application and Services to manage all risks attendance on its business.

56.3. Customer shall be responsible for providing its own Customer Access Facilities.

56.4. Customer warrants and shall ensure that all Customer Access Facilities meet the security standards required by E-Bit Systems from time to time and are and will remain free from any circumstances (including viruses) which may adversely affect E-Bit Systems’ Services and are otherwise reasonably appropriate for use in conjunction with the Services.

56.5. Third party facilities, including software programs, may be necessary or appropriate for access to or use with the Services. Customer agrees that its rights to make any use of such facilities are governed by the terms of the relevant third party licence or services agreements and not by this Agreement.

57. Consulting services

57.1. E-Bit Systems shall provide the Services on the terms set out in the Proposal.

57.2. Subject to compliance with security requirements and access restrictions imposed by the Customer, E-Bit Systems may provide its Services during such hours and on such days as it considers necessary and appropriate to ensure compliance with its obligations under this Agreement.

57.3. E-Bit Systems does not warrant that it will be capable of attending the Customer’s Site or of providing the Services at specific times requested by the Customer or outside of Business Hours during the term of this Agreement.

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