Terms and Conditions of Service

1  Term

This Agreement commences on the Commencement Date and expires on the Expiry Date unless terminated earlier in accordance with clause 17.

2  Engagement

The Customer engages Nuago and Nuago agrees to provide the Services in respect of the Supported Infrastructure in accordance with the terms and conditions of this Agreement.

3 Customer Obligations

3.1 Supported Infrastructure

The Customer must procure and maintain hardware and software support contracts with the applicable vendors for the Supported Infrastructure which comply with the reasonable requirements of Nuago (‘Vendor Support Contracts’). The Customer acknowledges that Nuago may not be able to provide all or part of the Services where Vendor Support Contracts for the Supported Infrastructure are not in place.

3.2 Compliance

The Customer must use and ensure its Personnel use the Services in accordance with all applicable laws and regulations and Nuago's directions, including security regulations and operating policies and procedures.

3.3 Customer's assistance

(a)          To enable Nuago to perform the Services, the Customer:

(i)          must provide Nuago with access to the information, equipment, facilities and the Site that Nuago reasonably requires to perform the Services, including reasonable and necessary Internet access, electrical power, telephone services and working space as Nuago may reasonably request and all relevant Documentation and information relating to the Customer's Computer System;

(ii)         advise Nuago as soon as it becomes aware of any changes in the information that the Customer has supplied to Nuago;

(iii)        must provide sufficient, qualified Personnel capable of performing all of its duties and obligations under this Agreement and will provide reasonable access to its relevant Personnel;

(iv)        consents to the installation of, and agrees to provide Nuago with sufficient space, facilities and assistance to allow Nuago to install, any Nuago Hardware and Nuago Software, that Nuago considers necessary to enable Nuago to perform the Services;

(v)         must, at its own cost, establish and maintain a connection to the Internet at all times during the Term to enable Nuago to connect remotely to the Customer’s Computer System;

(vi)        must maintain an active and up to date antivirus and anti-malware protection on the Customer's Computer System; and

(vii)       must ensure that the Customer's Computer System, any relevant data and the Site are ready and available to Nuago in order to facilitate the provision of the Services by Nuago.

(b)          Despite any provision of the Relevant Proposal, Nuago is not required to perform the Services until the Customer provides the assistance set out in clause 3.3(a).

4 Nuago Obligations

4.1 Services

The Services will be provided with due care and skill and in accordance with all applicable laws and regulations.

4.2 Nuago to exercise discretion

Subject to complying with its obligations under this Agreement, Nuago shall exercise its own independent discretion as to the most appropriate and effective manner of providing the Services and achieving the Customer’s requirements.

4.3 Scope of Nuago's obligations

(a)          Unless expressly required by the Relevant Proposal, the obligations of Nuago when providing the Services are confined to:

(i)          the provision of technical services only. If any repair or rectification of the Supported Infrastructure is required, Nuago's responsibility will be to request the relevant vendor of the Supported Infrastructure to provide the repair or rectification under the relevant Vendor Support Contract.

(b)          Nuago’s obligation to provide the Services is dependent on, and subject to, the Customer:

(i)          procuring and maintaining the Vendor Support Contracts set out in clause 3.1; and

(ii)         providing the assistance set out in clause 3.3(a).

(c)          Nuago’s obligation to provide the Services does not extend to rectifying any Defect, problem, fault or incident arising from or repair or replacement of an item which fails or develops an error due to:

(i)          a Force Majeure Event, fire, accident, neglect, misuse, vandalism, water, lightning, power failure, power surge or power spike;

(ii)         use of an item for other than its intended purpose or contrary to is specifications;

(iii)        services necessitated by authorised changes, modifications or alterations to hardware or software by the Customer or a third-party.

5 Changes to the Supported Infrastructure

5.1 Assumptions

The Customer acknowledges that the Services and the Fees specified in the applicable Relevant Proposal have been proposed by Nuago on the basis that:

(a)          the information provided by the Customer to Nuago concerning the Customer's Computer System is complete and accurate;

(b)          the Supported Infrastructure is correctly described in the Relevant Proposal;

(c)          the Customer's Computer System is properly maintained and up to date; and

(d)          the Customer will continue to maintain the Customer's Computer System for the Term.

5.2 Change to the Supported Infrastructure

The Customer must not substitute, remove or update the Supported Infrastructure or the Customer’s Computer System without first notifying Nuago, and Nuago may then:

(a)          where the substitution, removal or update is performed by a third party, require the third party to brief Nuago on all aspects of the work performed and provide Nuago with all relevant Documentation and information relating to the altered Supported Infrastructure;

(b)          vary the Fees or impose new Fees for performing any additional Services; and/or

(c)          request variations to this Agreement.

5.3 Services Exclusions

Unless expressly specified to the contrary in the applicable Relevant Proposal, the Services do not include the following (or services relating to any of the following):

(a)          electrical, air conditioning, building or environmental work external to the Supported Infrastructure;

(b)          effecting changes or alterations to the configuration or specifications of the Customer's Computer System;

(c)          re-installation, moving or removing of the Customer's Computer System;

(d)          repair of damage caused by:

(i)          the operation of the Supported Infrastructure by a person not authorised by the Customer;

(ii)         the operation of the Supported Infrastructure other than in accordance with recommended operating procedures or otherwise than in accordance with the directions or recommendations of the manufacturer or supplier;

(e)          cleaning, or refinishing any part of the Supported Infrastructure or the Customer's Computer System;

(f)           re-installing moving or removing the Supported Infrastructure or accessories, supplies or other items associated with the Supported Infrastructure;

(g)          maintenance which is determined by Nuago not to be related to the Supported Infrastructure;

(h)          rectification of defects, errors or computer viruses (except for computer viruses that were introduced by Nuago) in any software, hardware or equipment, or repairs, support or maintenance relating to those things;

(i)           back up, preservation, translation, migration or management of data;

(j)           rectification of faults in hardware, equipment or telecommunications links or telecommunications services;

(k)          development of any software or software interfaces needed to complete any installation;

(l)           supply and installation of consumables or hardware;

(m)        rectification of errors or failures caused by failure of hardware, power, air-conditioning or other environmental failure; or

(n)          installing, transferring, moving or removing software, data, hardware or other equipment or materials.

6 Nuago Software and Nuago Hardware

6.1  Software

If Nuago provides the Customer with Nuago Software, the Customer acknowledges that it has no right, title or interest in the Nuago Software and it is only being provided to the Customer for the purposes of Nuago providing the Services.

6.2 Hardware

(a)          If Nuago installs any Nuago Hardware into the Customer’s Computer System, the Customer acknowledges that it has no right, title or interest in the Nuago Hardware and it is only being provided to the Customer for the purposes of Nuago performing the Services.

(b)          The parties irrevocably agree that the Nuago Hardware is not and will not become a fixture on or to the Site.

(c)          On expiry of this Agreement, the Customer grants Nuago, or its authorised representatives, the right to enter the Site to remove the Nuago Hardware. Nuago agrees to make good any damage to the Site caused by Nuago carrying out the activities contemplated in this clause.

(d)          The Customer agrees, warrants and represents that it will:

(i)          not tamper with or remove any labels identifying the Nuago Hardware as the property of Nuago;

(ii)         not represent that it owns or otherwise attempt to sell, rent or otherwise part with the possession of the Nuago Hardware;

(iii)        not register or permit any charge or security interest to be registered or enforced with respect to the Nuago Hardware by anyone other than Nuago (including any interest registrable under the PPSA);

(iv)        not interfere with or tamper with the Nuago Hardware;

(v)         provide adequate rack space for and ensure the safe storage of the Nuago Hardware on the Site at all times; and

(vi)        ensure that the Nuago Hardware located on the Site has adequate access to electrical supply and cooling systems and is at all times maintained at a suitable operating temperature as reasonably required by Nuago from time to time.

(e)          The Customer is liable for any loss or damage to the Nuago Hardware.

7 PPSA

If Nuago determines that this Agreement (or a transaction in connection with it) contains or gives rise to a registrable security interest for the purposes of the PPSA, the Customer agrees to do all things reasonably required by Nuago (such as obtaining consents, signing documents, entering into a further agreement in relation to the security interest and supplying information) for the purposes of:

(a)          ensuring that the security interest is enforceable, perfected and otherwise effective; or

(b)          enabling Nuago to apply for any registration, or give any notification, in connection with the security interest so that the security interest has the priority required by Nuago; or

(c)          enabling Nuago to exercise its rights in connection with the security interest.

8 Fees

8.1 Payment of Fees

(a)          The Customer must pay Nuago the Fees in accordance with this Agreement.

(b)          Unless specified otherwise, the Customer must pay Nuago all Fees payable under this Agreement within 14 days of receipt of an invoice from Nuago without demand, deduction, withholding, set-off or counterclaim.

(c)          All payments must be made in Australian currency and unless stated otherwise, in immediately available funds.

(d)          A payment in ‘immediately available funds’ refers to a payment in cash, by bank cheque the drawer of which is an Australian bank, telegraphic transfer of cleared funds or a direct credit of cleared funds.

8.2 Fixed Service Fee and Variable Service Fee

(a)          Fees are quoted as either a Fixed Service Fee or a Variable Service Fee, as set out in the applicable Relevant Proposal.

(b)          Unless expressly stated as a Fixed Service Fee, all quotes are given as an estimate of the total cost of the fees to complete the Services.

(c)          In respect of the Variable Service Fee, the Customer acknowledges and agrees that:

(i)          site call-outs are charged in 15-minute units, with a one hour minimum

(ii)         remote support is charged in 15-minute units.

(d)          The Customer acknowledges that where unusual or overtime support staff are engaged specifically to complete the Services, these staff will be charged out at their additional cost to the Customer.

8.3 Additional Services Fee

(a)          Where Nuago provides the Customer with services that are outside the scope of the Services required by the applicable Relevant Proposal, then unless agreed otherwise, the Customer must pay the Additional Services Fee calculated in accordance with Nuago's standard hourly rates for providing that service.

(b)          Unless specified otherwise in the applicable Relevant Proposal, the Customer must pay the Additional Services Fee monthly in arrears.

8.4 Expenses

The Customer must pay Nuago or reimburse Nuago for any expenses which Nuago is required to pay or incur under the applicable Relevant Proposal or otherwise under this Agreement in order for Nuago to perform this Agreement.

8.5 Disputed invoices

If the Customer wishes to dispute an invoice it must:

(a)          pay all parts of the invoice which are not the subject of a bona fide dispute; and

(b)          give Nuago notice of the dispute and the reasons why the Customer disputes the invoice before the due date for payment of the invoice.

8.6 Default in payment

If the Customer fails to pay any amount payable under this Agreement by the due date then, except where the amount has been validly disputed pursuant to clause 8.5, Nuago may (without prejudice to any other remedies to which it is entitled):

(a)          charge the Customer interest (calculated on a daily basis) on any unpaid amounts at a rate of 10% per annum for the duration that the amount is unpaid; and

(b)          suspend performance of Nuago's obligations under this Agreement without any liability to the Customer.

9 Taxes

9.1 General

(a)          Unless expressly stated otherwise, all amounts payable are exclusive of any Taxes.

(b)          Subject to clause 9.2 , the Customer must pay all Taxes in connection with this Agreement.

(c)          If the law requires the Customer to make a deduction or withholding for or on account of Taxes from a payment, the Customer must pay Nuago an additional amount so that Nuago receives an amount equal to the payment which would have been paid had no deduction or withholding been made.

9.2 GST

(a)          Capitalised expressions which are not defined in this Agreement but which have a defined meaning in the GST Act have the same meaning in this clause.

(b)          If a party (Supplier) makes a Taxable Supply under this Agreement then the Recipient of the Taxable Supply must pay the Supplier the GST payable on the Taxable Supply in addition to the consideration for the Supply.

(c)          The Supplier must provide to the Recipient a Tax Invoice or other documentation that complies with the requirements for a valid Tax Invoice under the GST Act.

(d)          Subject to the Supplier issuing a Tax Invoice to the Recipient as required under clause 9.2(c), the Recipient must pay the GST on the Taxable Supply under this Agreement to the Supplier at the same time as the Recipient pays the consideration for the Supply to the Supplier.

(e)          Despite any other provision of this Agreement, if the whole or part of any consideration under this Agreement is a reimbursement or an indemnity to one party of an expense, loss, outgoing or liability incurred or to be incurred by the other party, the consideration excludes any GST included in such expense, loss, outgoing or liability incurred or to be incurred for which the other party can claim an Input Tax Credit. The other party will be assumed to be entitled to a full Input Tax Credit unless it can establish otherwise.

10 Defect

(a)          Nuago does not represent or warrant that the Services will be free from Defects and Nuago is under no obligation to rectify any Defects.

(b)          Without limiting clause 10(a), Nuago will have no responsibility to assist the Customer in respect of a Defect where:

(i)          the Defect is caused by items not produced or supplied by Nuago (including without limitation third party hardware or software supply by Nuago) or any error or defect in the Customer's Computer System, Supported Infrastructure or physical environment;

(ii)         the Defect is due to a Force Majeure Event; or

(iii)        the Customer is in breach of this Agreement.

(c)          Nuago will use reasonable endeavours to assign all warranties under any third-party agreement for the supply of hardware or software, including without limitation any warranty for fixed part, component or running part failure to the Customer.

11 Confidentiality

11.1 Protection of Confidential Information

Each party must only use or copy the other party’s Confidential Information for the purposes of this Agreement and must take all steps reasonably necessary to:

(a)          maintain the confidentiality of the other party’s Confidential Information; and

(b)          ensure that any person who has access to Confidential Information of the other party through it or on its behalf does not use, copy or disclose that Confidential Information other than in accordance with this Agreement.

11.2 Disclosure of Confidential Information

(a)          Each party must not disclose the Confidential Information of the other party to any person except:

(i)          to its Personnel who need to know the Confidential Information for the purposes of this Agreement;

(ii)         as required to be disclosed by law; or

(iii)        with the written consent of the other party.

(b)          Before disclosing Confidential Information to a person, the disclosing party must take reasonable steps to ensure that the person is aware of the confidential nature of the Confidential Information and has agreed to comply with the confidentiality obligations under this Agreement.

11.3 Return of Confidential Information

Each party must, at the other party’s request return, erase, destroy or procure the return, erasure or destruction (as applicable) of all copies of the other party’s Confidential Information in its possession or control.

11.4 Injunctive relief

A party will be entitled to seek injunctive relief for any breach or threatened breach of the other party’s obligations of confidentiality.

12 Privacy

(a)          Each party must comply with all applicable Privacy Laws in relation to any Personal Information that is collected, stored, used, disclosed or otherwise dealt with under or in connection with this Agreement.

(b)          To the extent the Customer discloses any Personal Information to Nuago, the Customer warrants that it has given all necessary notifications and has obtained all necessary consents required to disclose that information to Nuago and to enable its lawful use by Nuago.

(c)          Nuago warrants that Customer Data on servers hosted in Nuago racks is located in secure datacentres within Australia.

(d)          Nuago will comply with the Privacy (Tax File Number) Rule 2015 (Cth), Taxation Administration Act 1953 (Cth) and Income Tax Assessment Act 1936 (Cth) in respect of any tax file number information that is disclosed or provided to Nuago under or in connection with this Agreement.

13 Use of Customer Data

Subject to clause 11, the Customer acknowledges and agrees that Nuago (or its agents or contractors) will collect and use Customer Data for Nuago’s internal business purposes.

14 Intellectual Property

(a)          Unless specified otherwise in the applicable Relevant Proposal, Nuago (or its licensors) will own all Intellectual Property Rights in all materials and deliverables (including software and Documentation) provided by Nuago to the Customer or created or developed by Nuago in the course of providing the Services.

(b)          The Customer assigns to Nuago any rights the Customer has in those materials and deliverables.

(c)          To the extent any materials or deliverables (including software or Documentation) are provided to the Customer and are not the subject of a separate licence, then Nuago grants to the Customer (subject to payment of the Fees payable under this Agreement) a non-exclusive, royalty-free, non- transferrable licence to use the materials and the deliverables for its own internal business purposes for the Term.

(d)          Except to the extent expressly permitted by an applicable law or this Agreement, the Customer must not, and must not permit others to, use, copy, alter, modify, reproduce, adapt, distribute or make derivative works of all or any part of those materials and deliverables.

(e)          The Customer must not use the materials and deliverables (including any software and Documentation) other than in accordance with the terms of this Agreement, any Documentation provided and Nuago's reasonable instructions.

15 Implied Terms

15.1  Exclusion of implied terms

Any representation, warranty, condition, guarantee or undertaking that would be implied in this Agreement by legislation, common law, equity, trade, custom or usage is excluded to the maximum extent permitted by law.

15.2 Non-Excludable Guarantee

(a)          Nothing in this Agreement excludes, restricts or modifies any consumer guarantee, right or remedy conferred on the Customer by the Australian Consumer Law contained in Schedule 2 to the Competition and Consumer Act 2010 (Cth) or any other applicable law that cannot be excluded, restricted or modified by agreement (‘Non-Excludable Guarantee’).

(b)          To the maximum extent permitted by law, Nuago's liability for breach of a Non-Excludable Guarantee is limited, at Nuago's option, to:

(i)          in the case of goods, the replacement of the goods or the supply of equivalent goods, the repair of the goods, the payment of the cost of replacing the goods or of acquiring equivalent goods, or the payment of the cost of having the goods repaired; or

(ii)         in the case of services, the supplying of the services again or the payment of the cost of having the services supplied again.

16 Liability

16.1  No reliance on representations

(a)          The Customer warrants that it has not relied on any representation or warranties made by Nuago which has not been stated expressly in this Agreement, or relied upon any descriptions, illustrations or specifications contained in any document including proposals, websites or publicity material produced or provided by Nuago.

(b)          The Customer acknowledges that to the extent Nuago has made any representation or warranty 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 or warranty.

16.2 Limitation of Liability

Subject to clause 15.2, Nuago will be under no liability to the Customer or any other person in respect of:

(a)          any Loss that is directly or indirectly caused by or results from any wrongful, wilful or negligent act or omission of the Customer or any of its Personnel;

(b)          any indirect, incidental, special or consequential loss, loss of profits or anticipated profits, loss of revenue, loss of savings, loss of opportunity, or loss or corruption of data suffered incurred by the Customer under or in connection with this Agreement (whether arising under contract, in tort (including negligence) or otherwise), irrespective of whether the Customer or its Personnel previously notified Nuago of the possibility of such loss.

16.3 Liability cap

(a)          Subject to clause 15.2, to the maximum extent permitted by law, the maximum aggregate liability of Nuago for all proven Losses and Claims arising under or in connection with this Agreement, whether in contract, statute, tort (including negligence), equity or otherwise, is limited to the Fees paid by the Customer to Nuago under this Agreement, in relation to the particular Service which was responsible for or connected with the relevant Loss or Claim, in the 12 months preceding the Loss or Claim.

(b)          The cap on Nuago's liability in clause 16.3(a) does not apply to any injury or death to a person, any breach of clause 11 or any infringement of a third party's Intellectual Property Rights including under the indemnity set out in clause 16.4(b).

16.4 Indemnity

(a)          The Customer will at all times indemnify and hold harmless Nuago and its Personnel (Nuago Indemnified Parties) from and against any Loss reasonably incurred or suffered by any of the Nuago Indemnified Parties arising from any Claim against the Nuago Indemnified Parties where such Loss was caused by:

(i)          a breach by the Customer of its obligations under this Agreement;

(ii)         the Customer's receipt or use of the Services; or

(iii)        any wilful, unlawful or negligent act or omission of the Customer.

(b)          Nuago will indemnify and hold harmless the Customer from and against any Loss reasonably incurred or suffered by the Customer arising from any Claim against the Customer by a third party alleging that the use of the Services provided under this Agreement infringed the Intellectual Property Rights of any person. The indemnity is subject to the Customer promptly notifying Nuago of the relevant Claim and allowing Nuago to control the defence of the Claim.

17 Termination

17.1 Termination by Nuago

(a)          Without limiting the generality of any other provision in this Agreement, Nuago may suspend and/or terminate its provision of all or any of the Services immediately by written notice if the Customer:

(i)          is the subject of an Insolvency Event; or

(ii)         commits a breach of this Agreement and that breach is incapable of remedy or is capable of remedy but the Customer fails to remedy the breach within 15 Business Days of receiving notice requiring it to do so.

17.2 Termination by Customer

The Customer may terminate this Agreement immediately by written notice, if Nuago:

(a)          is the subject of an Insolvency Event; or

(b)          commits a breach of this Agreement and Nuago fails to remedy the breach within 15 Business Days of receiving notice requiring it to do so.

17.3 Consequences of Termination

(a)          If this Agreement expires or is terminated for any reason:

(i)          each party may repossess any of its property in the possession, custody or control of the other party;

(ii)         Customer must pay Nuago all amounts payable as at expiry or termination (including early termination charges (if any) specified in the applicable Relevant Proposal) and any amount which would have become payable but for that termination or expiry;

(iii)        Nuago may charge for all costs, disbursements and expenses, incurred in expectation of performing all of the requirements of the applicable Relevant Proposal except to the extent the Customer has already paid the applicable Fees; and

(iv)        all rights that a party has accrued before termination continue.

(b)          Clauses 8, 11, 12, 13, 15, 16, 17, 19, 25, 27 and 28 continue after termination or expiry of this Agreement, as well as all other clauses which by their nature should survive the expiry or termination of this Agreement.

18 Nuago Personnel

The Customer must not, during the Term and for two years after the expiry or termination of this Agreement, directly or indirectly solicit for employment or engagement the services of any of Nuago's Personnel involved in the supply of the Services to the Customer. The Customer acknowledges that the restraint in this clause 18 is reasonable in its extent and goes no further than is reasonably necessary to protect Nuago's interest in maintaining its Personnel.

19  Special Conditions

(a)          The Special Conditions will apply to this Agreement if and only if Nuago has agreed to them in writing.

(b)          To the extent of any inconsistency between the Special Conditions and the terms of this Agreement, the Special Conditions will prevail.

20 Dispute Resolution

(a)          The parties agree to use best endeavours to resolve in good faith any dispute concerning this Agreement.

(b)          Each party must follow the procedures in this clause 20 before starting arbitration or court proceedings (except for urgent injunctive or declaratory relief).

(c)          If a dispute arises between the parties and that dispute cannot be resolved promptly between their nominated contact persons, either party may notify the other party of a formal dispute. Each party must nominate a senior executive to meet with 10 Business Days of the notice (or another agreed period) to try and resolve the dispute.

(d)          If the dispute remains unresolved after the expiry of 10 Business Days from the date a party gave notice of the dispute, the parties must try to resolve the dispute by mediation administered by the Australian Disputes Centre in accordance with its then-current Guidelines for Commercial Mediation.

(e)          Despite the existence of a dispute, and except where otherwise provided, each party will continue to perform its obligations under this Agreement.

21 Insurance

(a)          Nuago will, during performance of the Services, hold insurance policies for the following risks and to the following minimum amounts:

(i)          Public Liability: $20 million per event and in the aggregate;

(ii)         Professional Indemnity: $5 million per event and $15 million in the aggregate; and

(iii)        Workers Compensation: to the extent required by law.

(b)          It is recommended that the Customer obtain appropriate levels of cyber insurance to appropriately cover damages or losses from a cyber-related data breach or any other security-related event.

22 Cyber Security

(a)          Unless otherwise specified in the Relevant Proposal, the Customer is solely responsible for security governance, including but not limited to the direction and approval of measures to protect Customer data, software, applications or other materials that are installed, located, hosted or otherwise stored in the Supported Infrastructure/Customer Computer System.

(b)          Where specified in the Relevant Proposal, Nuago will implement security measures or provide advice in relation to systems and process to assist in securing the Supported Infrastructure as part of the Services, however Nuago does not represent and warrant that the provision of these services will guarantee the availability, uptime, and/or security of the Supported Infrastructure.

23 Force Majeure

(a)          Neither party is liable for not performing an obligation in whole or in part, or for not performing it on time (except an obligation to pay money), because of a Force Majeure Event.

(b)          If a Force Majeure Event occurs, the non-performing party must:

(i)          promptly notify the other party of the event and provide an estimate of the non-performance and delay;

(ii)         take all reasonable steps to overcome the effects of the event (but this does not require the settlement of industrial disputes or other claims on unreasonable terms); and

(iii)        resume compliance as soon as practicable after the event no longer affects either party.

(c)          If the Force Majeure Event continues for a period of two months, either party may terminate this Agreement immediately by giving the other party written notice.

24 Delays

(a)          Nuago will use its reasonable endeavours to meet any dates agreed under this Agreement but does not guarantee it will do so.

(b)          Without limiting clause 24(a) , Nuago will not be responsible for any delays (or Claims or Losses arising from delays) which occur during the course of the Term and which arise from any non-compliance by the Customer with this Agreement, the late supply or provision of instructions and information by the Customer, delays in obtaining access to the Site or any other delays caused by the Customer, the Customer's third party suppliers and contractors.

(c)          Nuago will be entitled to extension of time in respect of any date agreed under this Agreement equal to the duration of any delay caused by Force Majeure Event or a cause specified in clause 24(b).

25 Notices

(a)          A notice, consent, approval or other communication under this Agreement (‘Notice’) must be:

(i)          in writing and signed by the sender or its duly authorised representative, addressed to the recipient and sent to the recipient’s address specified in this Agreement or as otherwise notified; and

(ii)         delivered by personal service, sent by pre-paid mail or transmitted by or email, or any other lawful means.

(b)          A Notice given in accordance with this clause 25 is treated as having been given and received:

(i)          if personally delivered, on delivery;

(ii)         if sent by pre-paid mail, on the third clear Business Day after the date of posting (or the seventh Business Day after the date of posting if sent to or from an address outside Australia);

(iii)        if sent by email, at the time of transmission by the sender, unless the sender receives an automated notice generated by the sender’s or the recipient’s email server that the email was not delivered, except that, if the delivery, receipt or transmission is after 5.00pm in the place of receipt or on a day which is not a Business Day, it is taken to have been received at 9.00am on the next Business Day.

26 Variation

(a)          This Agreement may only be varied by written agreement between the parties.

(b)          If either party (the Proposing Party) wishes to vary the agreement:

(i)          the Proposing Party will submit a copy of the proposed variations to the other Party (the Receiving Party), specifying a reasonable period in which the Receiving Party is to provide written notice of acceptance or rejection of the proposal;

(ii)         if the Receiving Party accepts the variations, the Agreement will be deemed to be so amended from the date of acceptance; and

(iii)        if the Receiving Party rejects the proposed variations, each party will perform the Agreement in accordance with the unvaried terms.

27 General

(a)          Except as expressly stated otherwise in this Agreement, each party must pay its own legal and other costs and expenses of negotiating, preparing, executing and performing its obligations under this Agreement.

(b)          The Customer acknowledges that Nuago may subcontract the performance of all or part of its obligations under this Agreement.

(c)          Nothing in this Agreement (whether express or implied) is intended to create or constitute a relationship of partnership, agency, employment, trustee or other fiduciary relationship between the parties. It is the intention of the parties that any such relationship is expressly denied.

(d)          Neither party may assign any of its rights or novate any obligations under this Agreement without the prior written consent of the other party (consent not to be unreasonably withheld or delayed). Either party may assign or novate this Agreement to any purchaser of all or substantially all of its business assets without the need to obtain consent from the other party.

(e)          A right created by this Agreement may only be waived in writing by the party giving the waiver, and the failure to exercise or any delay in exercising a right or remedy provided by this Agreement or by law does not waive the right or remedy. A waiver of a breach of this Agreement does not waive any other breach.

(f)           This Agreement constitutes the entire agreement of the parties about its subject matter and any previous agreements, understandings and negotiations on that subject matter cease to have any effect.

(g)          These Terms and Conditions shall prevail over all terms in a document submitted by the Customer to Nuago, (except in relation to any agreed Special Conditions) to the extent of any inconsistency.

(h)          This Agreement is governed by the laws applicable in South Australia, Australia. Each party submits to the non-exclusive jurisdiction of the courts of that place and the courts of appeal from them.

(i)           If any clause or part of any clause is held by a court to be invalid or unenforceable, that clause or part of a clause is to be regarded as having been deleted from this Agreement and this Agreement otherwise remains in full force and effect.

(j)           A party, at its own cost and within a reasonable time of being requested by another party to do so, must do all things and execute all documents which are reasonably necessary to give full effect to this Agreement.

(k)          This Agreement may consist of a number of counterparts and, if so, the counterparts taken together constitute one agreement.

(l)           Except as expressly stated otherwise in this Agreement, a party may conditionally or unconditionally give or withhold consent to be given under this Agreement and is not obliged to give reasons for doing so.

28 Definitions and interpretation

28.1 Definitions

In this Agreement, unless the context requires otherwise:

Additional Services Fee means any fees in addition to the Fixed Service Fees which Nuago may charge the Customer to cover miscellaneous, additional, increased, unusual or unexpected costs incurred by Nuago in supplying the Services or any other service to the Customer.

Agreement means these Terms and Conditions and any Relevant Proposal agreed by the parties.

Business Day means a day which is not a Saturday, Sunday, public holiday or bank holiday in South Australia.

Claim includes a claim, notice, demand, action, proceeding, litigation, investigation, judgment, damage, loss, cost, expense or liability, whether based in contract, tort or statute and whether involving a third party or a party to this Agreement, but excluding unascertained or contingent claims or claims for consequential loss.

Commencement Date means the earlier of:

(a)          the date Nuago commences providing the Services to the Customer; and

(b)          acceptance by the Customer and Nuago of the Relevant Proposal.

Confidential Information means the following information, regardless of its medium of form, whether or not it is marked as confidential, and whether the recipient of the information became aware of it before or after the date this Agreement is executed:

(c)          the existence and terms of this Agreement;

(d)          information of a party (disclosing party) that is:

(i)          made available by or on behalf of the disclosing party to the other party (receiving party), or is otherwise obtained by or on behalf of the receiving party; and

(ii)         by its nature confidential or the receiving party knows, or ought reasonably to know, is confidential, but does not include information that:

(e)          is in or enters the public domain through no fault of the receiving party or any of its Personnel;

(f)           is or was made available to the receiving party by a person (other than the disclosing party) who is not or was not then under an obligation of confidence; or

(g)          is or was developed by the receiving party independently of the disclosing party and any of its Personnel.

Corporations Act means the Corporations Act 2001 (Cth).

CPI means the All Groups Consumer Price Index applicable to Australia, Weighted Average of Eight Capital Cities, published by the Australian Bureau of Statistics and if this price index is discontinued or abolished or if the items or weighting of the items whose prices are considered vary so as to change the basis of the price index, then any price index Nuago selects that, as nearly as practicable, serves the same purpose.

Customer means the customer receiving the Services from Nuago under the Agreement and may be specified in the Relevant Proposal.

Customer Data means data collected by Nuago (either directly or indirectly) on or from the Customer and including without limitation in relation to the Customer’s use of the Services.

Customer's Computer System means the Customer's existing computer system and operating environment, including all hardware and software owned by, licensed to or leased by the Customer.

Defect means any failure of the Services to materially comply with the applicable Relevant Proposal or this Agreement.

Documentation means any user manual or other operational documentation provided by (as applicable) the manufacturer of any hardware or the licensor of any software, and includes any modifications of such documentation.

Early Termination Fee means the amount equal to the value of the Fees which would payable by the Customer to Nuago in respect of the remainder of the Term.

Expiry Date means the earlier of:

(a)          the date Nuago has finished providing the Services; and

(b)          the expiry date (if any) set out in the Relevant Proposal.

Fees means the Fixed Service Fee, Additional Services Fee and any other fees and charges which the Customer must pay for the provision, receipt and use of the Services and any other services provided under this Agreement.

Fixed Service Fee means the fees and charges payable by the Customer to Nuago for the provision of the Services as specified in the applicable Relevant Proposal.

Force Majeure Event means any event or circumstance:

(a)          which a party did not cause;

(b)          to which that party did not materially contribute; and

(c)          which that party is unable to prevent or materially influence,

and includes without limitation hostilities, military operations of any nature, acts of public disorder, civil commotion, sabotage, strike, fire, floods, exceptional bad weather conditions, epidemics, war (whether declared or not) and acts of God.

Government Authority means any government, governmental, semi-governmental, administrative, fiscal or judicial body department, commission, authority, tribunal, agency or entity.

GST means goods and services tax or similar value added tax levied or imposed in Australia under the GST Law or otherwise on a supply.

GST Act means A New Tax System (Goods and Services Tax) Act 1999 (Cth).

GST Law has the same meaning as in the GST Act.

Insolvency Event means the occurrence of any one or more of the following events regarding a party (Insolvent Party):

(d)          the Insolvent Party ceases or takes steps to cease to conduct its business in the normal manner;

(e)          the Insolvent Party enters into or resolves to enter into any arrangement, composition or compromise with or assignment for the benefit of its creditors or any class of them;

(f)           the Insolvent Party is unable to pay its debts when they are due or is deemed under the Corporations Act to be insolvent;

(g)          a liquidator or provisional liquidator is appointed to the Insolvent Party or a receiver, receiver and manager, official manager, trustee or similar official is appointed over any of the assets or undertakings of the Insolvent Party;

(h)          an application or order is made or a resolution is passed for the winding up of the Insolvent Party; or

(i)           any act or event analogous or having a substantially similar effect to any of the events specified in paragraphs (a) to (e) of this definition.

Intellectual Property Rights means all intellectual property rights, including without limitation:

(a)          patents, inventions, copyright, registered designs, trade marks, rights in circuit layouts and the right to have confidential information kept confidential; and

(b)          any application or right to apply for registration of any of those rights.

Loss includes any loss, damage, cost, charge liability (including Tax liability) or expense.

Nuago means Nuago Pty Ltd ABN 41 611 856 583.

Nuago Hardware means Nuago's hardware and any third party hardware provided by Nuago (if any) which Nuago uses or installs into the Customer's Computer System to enable Nuago to provide the Services.

Nuago Software means Nuago's software and any third party licensed software (if any) which Nuago uses or installs on the Customer's Computer System to enable Nuago to provide the Services.

Personal Information has the meaning given to it in the Privacy Act.

Personnel means, in respect of a party, its officers, employees, agents, contractors and subcontractors.

PPSA means the Personal Property Securities Act 2009 (Cth) as amended from time to time.

Privacy Act means the Privacy Act 1988 (Cth).

Privacy Laws means:

(c)          the Privacy Act;

(d)          all applicable laws affecting privacy, Personal Information or the collection, handling, storage, processing, use or disclosure of data; and

(e)          any legally binding ancillary rules, guidelines, orders, directions, directives, codes of conduct or other instruments made or issued thereunder, as amended from time to time.

Relevant Proposal includes a quote, statement of work, request for tender or proposal as accepted or agreed by the Customer and Nuago.

Services includes any technical services and professional services and the supply of goods (if applicable) as set out in a Relevant Proposal.

Site means the location or locations at which the Services and any other services or supplies will be provided as specified in the applicable Relevant Proposal.

Special Conditions means the special conditions, if any, set out in the applicable Relevant Proposal.

Supported Infrastructure means the devices, infrastructure, environments, products and systems of the Customer's Computer System specified in the applicable Relevant Proposal, in respect of which Nuago will provide the Services.

Tax means all forms of taxes, duties, imposts, charges, withholdings, rates, levies or other governmental impositions of whatever nature and by whatever authority imposed, assessed or charged together with all costs, charges, interest, penalties, fines, expenses and other additional statutory charges, incidental or related to the imposition.

Term has the meaning provided by clause 1.1.

Terms and Conditions means these terms and conditions.

Variable Service Fee means the estimated fees and charges (on a time and materials basis) payable by the Customer to Nuago for the provision of the Services as specified in the applicable Relevant Proposal.

Vendor Support Contracts has the meaning provided by clause 3.1.

28.2 Interpretation

In this Agreement, unless the context otherwise requires:

(a)          a reference to:

(i)          the singular includes the plural and the plural includes the singular;

(ii)         a recital, clause, schedule or annexure is a reference to a clause of or recital, schedule or annexure to this Agreement and references to this Agreement include any recital, schedule or annexure;

(iii)        any contract (including this Agreement) or other instrument includes any variation or replacement of it and as it may be assigned or novated;

(iv)        a statute, ordinance, code or other law includes subordinate legislation (including regulations) and other instruments under it and consolidations, amendments, re-enactments or replacements of any of them;

(v)         a person or entity includes an individual, a firm, a body corporate, a trust, an unincorporated association or an authority;

(vi)        a person includes their legal personal representatives (including executors), administrators, successors substitutes (including by way of novation) and permitted assigns;

(vii)       a group of persons is a reference to any two or more of them taken together and to each of them individually;

(viii)      an entity which has been reconstituted or merged means the body as reconstituted or merged, and to an entity which has ceased to exist where its functions have been substantially taken over by another body, means that other body;

(ix)        unless otherwise stated time means South Australian time;

(x)         business hours means between the hours of 9.00 am and 5.00 pm on a Business Day;

(xi)        a reference to a day or a month means a calendar day or calendar month;

(xii)       money (including ‘$’, ‘AUD’ or ‘dollars’) is to Australian currency;

(b)          the meaning of any general language is not restricted by any accompanying example, and the words ‘includes’, ‘including’, ‘such as’, ‘for example’ or similar words are not words of limitation;

(c)          the words ‘costs’ and ‘expenses’ include reasonable charges, expenses and legal costs on a full indemnity basis;

(d)          headings and the table of contents are for convenience only and do not form part of this Agreement or affect its interpretation;

(e)          if a period of time is specified and dates from a given day or the day of an act or event, it is to be calculated exclusive of that day;

(f)           if the last day for doing an act is not a Business Day, the act must be done instead on the next Business Day; and

(g)          a provision of this Agreement must not be construed to the disadvantage of a party merely because that party was responsible for the preparation of this Agreement or the inclusion of the provision in this Agreement.

Date published: July 2019

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