The terms and conditions set out in this document form the legal agreement between you and Independent Solutions Pty Ltd ACN 078 247 873 (IS) and govern the provision of goods and services by IS to you as agreed from time to time (Sales Order). When we say “you”, “your” etc. we mean the entity which receives the goods or services and which we will also refer to as Customer. When we say “we”, “us”, “our” etc. we mean IS.
Framework: This document is incorporated into each and every Sales Order (Agreement). Sales Orders may be terminated or entered into between you and us from time to time and the entering into or termination of a Sales Order shall not affect any other Sales Order. Each provision in this document shall be read as applying individually to each Sales Order.
System: Subject to the payment of the Upfront Cost we will: install the System (at the relevant Sites), and provide the Documentation as described in a Sales Order.
Services: Subject to the payment of the Recurrent Charges we will provide the Services to you. We may sub-contract the provision of Services. Where a third party is providing Services to you, we are not responsible for compliance with any service levels, actions or inactions of those third parties and you will hold us harmless against any Claim or demand received by us in connection with the provision of goods and services to you by a third party. Where we publish service levels for Services they are not binding on us or any third party. You agree to do all such things and provide all such access to Sites and systems (Access) to allow us (or a third party) to provide Services and we are not liable to you in connection with any failure to provide Services where you fail to provide the requisite Access.
Hardware: We do not manufacture the Hardware and we supply the Hardware as is and without any warranty from us. Any manufacturers warranties are not affected by this clause. Risk in the Hardware will pass to you when the Hardware is delivered to you (or your nominated agent). Where you are purchasing the Hardware: title in the Hardware will pass to you at the time risk passes in the Hardware; and you agree not to sell, transfer title or otherwise dispose of the Hardware until such time as all amounts outstanding to us in connection with the Hardware is paid in full. Where you are renting or leasing Hardware title will never pass to you. If you sell any Hardware in contravention of this clause you do so as a fiduciary agent of IS (provided that such sale will not give rise to any obligations on the part of IS). You must hold all ‘proceeds’ (as defined in section 31 of the PPSA) on trust for IS and must immediately upon receipt account to IS for all such proceeds. Each amount to be held on trust under this clause must be kept in a separate account and must not be mixed with any other monies, including your own monies. You agree that we have a Purchase Money Security Interest (as defined in the PPSA) attaching to all Hardware in order to secure payment by you to us of all money owed in connection with the supply of the Hardware under a Sales Order (PPSA Security Interest). You agree to do all things necessary to assist us perfect our PPSA Security Interest. In the case of any payment default under this document you authorise us to take possession of any Hardware in which we have a PPSA Security Interest pursuant to this document and this includes Hardware which payment terms are not yet expired or overdue. You hereby irrevocably authorises us, our officers, servants and agents to enter relevant Sites for the purpose of taking possession of Hardware. You acknowledge that we shall not be liable for any damage or injury caused to any of your premises in retaking items pursuant to a PPSA Security Interest. While in your possession you agree to keep the Hardware fully insured against all usual risks of damage or loss at your expense. The following provisions of the PPSA do not apply: Sections 95, 130, 132(3)(d), 132(4), 135(1)(a) and 143. You agree to waive your rights under section 157 of the PPSA. We may apply proceeds received pursuant to the exercise of rights under this clause as we choose. Immediately upon the termination or expiry of a Sales Order, you must deliver up to us any Hardware not fully paid for, or pay us in full for all amounts outstanding, at our 2 option. If we notify you that a New Release requires an upgrade in hardware to meet minimum specifications, you must upgrade your hardware on which the Software is to be used in order to meet those minimum specifications.
Software: (Licence) subject to the ongoing payment of the Licence Fee, compliance with all terms of this document and a valid Sales Order being in place we grant to you a nonexclusive, non transferable, limited, fee bearing, revokable right to use the Software solely on the Hardware (or any other hardware approved by IS) and for the purpose of operating your System and receiving Services (Licence). The Licence Fee is exclusive of all taxes (including GST), duties and surcharges payable in respect of the Software. The Licence will terminate immediately when the Licence Fee (or any component of it) is due but not paid. We are not required to provide Fixes or New Releases in connection with the Software, but where we do so you must adopt in full those Fixes and New Releases and failure to do so will give us the right to terminate the Licence on immediate notice and you will indemnify and hold us harmless against any loss, Claim, damage, demand, fine or penalty which we incur in connection with your failure to adopt in full a Fix or New Release of the Software. (Ownership) in relation to Software developed by us (IS Software), we retain ownership of the IS Software whether in its original form or as modified by the Customer. All Intellectual Property Rights in IS Software and the trademark Profit-Track™ are retained by IS. Nothing in this document affects the ownership of Moral Rights in the IS Software. (Use) you may make one copy of the Software as is necessary to serve your internal needs for System back-up and security. All copies of the IS Software and the media in which the copies are contained shall be and remain the property of IS. You must notify us immediately on becoming aware of any unauthorised use or copying of the whole or any part of the Software or of any Documentation. Immediately upon the termination or expiry of the Licence you must deliver up to us the Software (including all copies, authorised or otherwise), the media and the Documentation, whether in their original form or as modified by you. (Modifications) you must not modify the whole or any part of the Software or combine or incorporate the whole or any part of the Software in any other program or system without our prior consent in writing. You fully indemnify and hold us harmless against any liability incurred if a modification you make to the Software infringes the Intellectual Property Rights of a third person. The IS Software as modified remains the property of IS (where relevant). This document shall continue to apply to the IS Software as modified. You must not reverse assemble or reverse compile the Software or any part of the Software. You are be responsible for protecting the Software and all Documentation at all times from unauthorised access, use or damage. Risk of loss or damage to the Software, the media and the Documentation provided to you passes to you upon delivery of the Software. (Third party applications) where the Software includes software not created by IS (Third Party Applications) you agree to the terms of use of the rights owners for such Third Party Applications. We are not liable in any way to you for any loss you suffer connected to any Third Party Applications used in conjunction with the System and you indemnify us and holds us harmless against all losses, damages and Claims incurred by us pursuant to the breach by you of the terms of use of Third Party Applications and your use of them. You must promptly install any Fix or New Release which we notify you of, as applicable, at each Site where the Software or the applicable module of the Software is used you. If you fail to accept, install (or arrange for the installation) and use a Fix or New Release which we have notified you of within 60 Business Days of us informing you of the availability of the Fix or New Release, we may suspend the Licence and the performance of all Services, or terminate the relevant Sales Order. We will not be liable for any loss or Claims in relation to the Software or use of it by you where you fail to install a Fix or New Release in compliance with this clause. (General) this section relating to Software is subject to any right of modification arising pursuant to sections 47B(3), 47C, 47D, 47E or 47F of the Copyright Act 1968 (Cth).
Charges and GST: You must pay the Charges to us as specified in the Sales Order. Time for payment of all Charges is of the essence. The Charges are expressed exclusive of GST. If GST is payable as a consequence of any supply made (or deemed to be made) by one party to the other, the party receiving the supply must pay to the party making the supply an amount equal to the GST payable in respect of the supply (GST Amount), in addition to the Charges or other consideration (if any) required to be paid. A party to whom a GST Amount is owed must include that GST Amount on the same invoice as the consideration for the supply to which it relates. The party receiving that invoice must pay the GST Amount no later than the date on which the rest of the invoice is due to be paid. If you dispute the whole or any part of the amount claimed in an invoice submitted by us, you will pay the undisputed portion on the due date. The dispute regarding the 3 remainder may be referred to the dispute resolution procedure prescribed by this document. If it is subsequently resolved that a further amount is payable, you will pay that amount together with interest at the rate of 12 per cent per annum.
Termination: If a party (Defaulting Party) commits a breach of any of the terms in this document which: is not capable of remedy; or is capable of remedy, but the Defaulting Party fails to remedy such breach within 5 Business Days of receiving notice from the other party specifying the breach and requiring the breach to be remedied; then the Sales Order relating to the breach will terminate with immediate effect upon the other party giving to the Defaulting Party notice in writing of such breach or failure. Where a Sales Order terminates or expires the obligations linked to the provision of goods and services by IS immediately cease but all obligations of payment accrued until termination remain enforceable. IS may terminate a Sales Order at any time without further liability to Customer. Where IS terminates a Sales Order pursuant to a breach of this document by Customer IS may sue Customer for (but not limited to) any loss or damage in any way connected to the loss of future benefit of the Sales Order, including any profit.
Data: By entering into a Sales Order you are consenting to IS collecting and using the Data consistent with our privacy policy which is incorporated into this document. Our privacy policy can be found by following this link: https://www.independentsolutions.com.au/privacy.html.
Dependencies: Any obligation on Customer to do anything, undertake to do anything, or to arrange for any other party (save for IS) to do anything as set out in a Sales Order, is a Dependency. Where Customer fails to perform or provide for the proper execution, on time, of a Dependency, IS shall not be liable in any way to Customer for a failure to properly provide the System or the Services and Customer shall hold IS harmless is such circumstances. Specific Dependencies include but are not limited to Customer: allowing proper access to the Sites; using the System in accordance with the Documentation and all instructions of IS and its suppliers; making all recommended changes to the System, only allowing trained staff to use the System; not allowing Customer Hardware or Customer Software to interfere with the System; providing full documentation in connection with Customer Hardware and Customer Software; scheduling with IS for the provision of Services; providing all relevant information in connection Support Services and Maintenance Services; and complying with all Applicable Laws.
Acceptance: Upon completion of installation of the System at the Site IS will inform Customer and subject to the System operating in accordance with its published specifications the System will be deemed accepted by Customer.
Intellectual Property: All Intellectual Property Rights in IS Materials and the Contract Materials will be owned by IS. Customer agrees to do, and procure that its Representatives will do, all such things (including the execution of assignment documentation) as may be required by IS to perfect the assignment of any Intellectual Property Rights in the Customer Materials and the Contract Materials. All Intellectual Property Rights in the Customer Materials will be owned by Customer. To the extent that the Customer requires the right to use the IS Materials and the Contract Materials for the purposes of receipt of the Services and to the extent that IS (or any member of IS Group) exclusively owns all Intellectual Property Rights in such Materials, IS grants to Customer a non-exclusive, royalty-free licence during the Term solely to that extent and strictly for that purpose. To the extent that IS requires the right to use the Customer Materials for the purposes of performing its obligations under this document, Customer grants to IS a non-exclusive, royalty-free licence during the Term solely to that extent and strictly for that purpose. Customer waives, and must ensure that its Representatives waive, absolutely and irrevocably, all Moral Rights in relation to Contract Materials. Customer must notify IS as soon as is reasonably practicable if it becomes aware of: any infringement or threatened infringement of IS’s Intellectual Property Rights, or any unauthorised use of the IS Materials or the Contract Materials. IS warrants that the IS Materials and use of the Services do not infringe any Intellectual Property Right, of any other person. If any person makes any claim alleging IS Materials or any use of them by Customer, infringes any Intellectual Property Right of any person (IP Claim), IS must indemnify Customer against all costs, claims, losses, damages, demands and expenses (including all legal costs, fees and expenses) arising directly or indirectly out of the IP Claim, on the following terms (and the indemnity is subject to Customer compliance with these terms):
- Customer must promptly give notice to IS of any IP Claim of which it is aware
- Customer must not make any admissions in relation to a IP Claim unless IS gives Customer notice consenting to the admission Customer
- (at IS’s request and expense) Customer must allow IS to conduct and settle all negotiations and litigation resulting from any IP Claim
- at all times in the relation to the IP Claim Customer must act in accordance with the reasonable instructions of IS, and
- at the request of IS Customer must afford all reasonable assistance with all negotiations or litigation (and IS will reimbursed Customer for any reasonable expenses incurred in so doing).
IS may (at its complete discretion): replace or change the IS Materials so as to avoid continuing an infringement and Customer must accept such replaced or changed component provided that none of the features or functions of the relevant materials (as replaced or changed) are adversely affected; or obtain (at IS’s cost) a right for Customer to continue using the relevant Materials. In relation to any IP Claim which IS conducts, Customer will provide IS with all such available information and assistance as IS may reasonably require, at IS’s expense. If any person makes any claim alleging Customer Materials or any use of them by IS, infringes an8y Intellectual Property Right of any person (CIP Claim), Customer must indemnify IS against all costs, Claims, losses, damages, demands and expenses (including all legal costs, fees and expenses) arising directly or indirectly out of the CIP Claim.
Access to Sites: Customer will allow IS and its sub-contractors reasonable access to Sites to the extent necessary for IS to provide the Services. Customer will notify IS of any health and safety hazards which may arise in connection with attendances at the Site. Customer will ensure that any of its premises that might be visited by IS or its Representatives comply in all respects with any applicable health and safety laws and regulations. IS or its Representatives may from time to time inspect premises to be visited by IS or its Representatives to review the arrangements for health and safety.
Warranties: Customer and IS represent and warrant that: it is duly incorporated in accordance with the laws of its jurisdiction, validly exists under those laws and has capacity to sue or be sued in its own name and to own its property and conduct its business as it is being conducted, it has capacity unconditionally to sign and deliver and comply with its obligations under this document, it has taken all necessary action to authorise the delivery of and compliance with its obligations under this document, this document is enforceable against it in accordance and are not void or voidable, it is not insolvent, and it is not entering into this document as a trustee. Each party acknowledges that each other party has entered into a Sales Order in reliance upon the representations and warranties in this document.
Liability and indemnities: To the maximum extent permitted by law IS disclaims all warranties and representations with respect to the System. IS does not warrant or represent:
- against interference with your enjoyment of the System
- that the functions of the System will meet your requirements
- that the operation of the System and provision of Services will be uninterrupted or error-free
- that any Service will continue to be made available
- that defects in the System will be corrected
- that the System will be compatible or work with any Third Party Applications.
No oral or written information or advice given by IS will create a warranty, representation or guarantee. Subject to and without limiting the following, the total aggregate liability of IS for a Claim or Claims under or in connection with this document or a Sales Order arising from all matters is limited to 85% of the Charges paid by Customer to IS under the relevant Sales Order. The law implies various terms, conditions, guarantees and warranties which may apply to IS supplying goods or services to Customer. Supplier excludes all of those terms, conditions, guarantees and warranties, and any other term, condition, guarantee and warranty that might have otherwise have been implied by custom or otherwise, to the full extent permitted by law. Provisions of the Competition and Consumer Act (Cth) 2010 in some cases either cannot be excluded, restricted or modified, or can only be restricted or modified to a limited extent. If any such provisions do apply, then to the extent permitted by law IS’ liability under those provisions is limited: in relation to goods is limited to replacement of the goods or the supply of equivalent goods, or repair of the goods, or payment of the cost of replacing the goods or of acquiring equivalent goods, or payment of the cost of having the goods repaired; and in relation to services is limited to the supplying of the services again, or the payment of the cost of having the services supplied again. To the 5 extent permitted by law, IS will not be liable to Customer in respect of any Claim or on any other basis for any loss of profit, goodwill, data or business, loss of opportunity, increased financing costs, any failure to realise anticipated savings or for any consequential, indirect, special, punitive, remote or incidental damages. Customer will indemnify IS from and against all Claims, demands, actions, costs, expenses, liabilities and damages or losses (including all interest, penalties and legal and other professional costs and expenses) incurred by IS Group and its Representatives as a result of the negligence of or the breach by Customer or its Representatives of any term or condition in this document. IS relies on the statements set out in this clause as essential conditions of its contract with you. Customer has not relied on any representation made or implied by IS or arising out of or implied by its conduct save for as expressly set out in this document. To the extent that IS has made or implied, or by conduct given rise to or implied, any representation that is not expressly stated in this document, Customer is not proceeding in reliance on the representation. IS makes no promise, representation or otherwise in relation to any benefit Customer may obtain by entering into a Sales Order save as set out herein and IS guarantees in no way any increased sales, transactions, revenue, goodwill or profit or any other benefit that may flow from Customer engaging with IS.
Confidentiality: Each party will: keep the other party’s Confidential Information confidential, not disclose any Confidential Information to a third party, other than as a consequence of the performance of that party’s obligations under this document, and use Confidential Information only in connection with the proper performance of this Agreement. This clause will not apply to any Confidential Information to the extent that it: comes within the public domain other than through breach of this clause, is required or requested to be divulged by any court, tribunal or governmental authority with competent jurisdiction to which either party is subject, wherever situated, is known to the receiving party before the disclosure to it, or is disclosed with the other party’s prior written approval to the disclosure. The obligations in this clause will continue without limit in time.
Survival of Clauses: Termination or expiry of a Sales Order (howsoever occurring) will not affect either of the parties’ accrued rights or liabilities or affect the coming into force or the continuance in force of any provision which is expressly or by implication intended to come into or continue in force on or after termination or expiry.
Force Majeure: If a party by reason of an event out of their reasonable control is unable to perform or carry out any obligation under this document (including in a Sales Order) (Force Majeure Event), then that obligation is suspended for so long and to the extent that it is affected by those circumstances. This clause does not apply to any obligation to make a payment.
Dispute resolution: If a dispute arises out of or relates to a Sales Order the parties agree to endeavour in good faith to settle the dispute by following the following steps in the order shown:
- the party with the concern or issue must appoint a senior representative of their organisation to mange the dispute and person must write to the other party setting out in sufficient detail the dispute and their desired outcomes (Dispute Notice)
- upon receipt of a Dispute Notice the receiving party must appoint a senior representative of their organisation to manage the dispute and that person must contact the other parties nominated representative and make arrangements for an initial meeting between the parties to discuss the issues (First Dispute Meeting) (the First Dispute Meeting may occur via telephone or comparable technology)
- the First Dispute Meeting must be held within 10 Business Days of the Dispute Notice being issues
- if within 90 Business Days of the First Dispute Meeting the matter has not been resolved then the party’s must submit the matter to mediation administered by the Australian Commercial Disputes Centre and, in the event that the mediation is unsuccessful, to submit the dispute to arbitration. This clause will survive termination of all Sales Orders. Nothing in this clause precludes, restricts or defers a party’s right to seek urgent interlocutory relief or remedy or to terminate a Sales Order.
Change in control (and sale of business): Where a Change in Control occurs or is likely to occur in connection with Customer, Customer must: immediately notify IS, and provide IS with the details of the new person to Control Customer including payment details. Where Customer intends to sell the business and undertakings into which the Hardware, Software and Services are provided Customer must provide IS with the 6 details of the new owner including payment details.
Interpretation: In this document: references to any statute, statutory provision, enactment, directive or regulation include any change, consolidation, replacement, reenactment or extension of the statute, statutory provision, enactment, directive or regulation; reference to a document is a reference to the document as from time to time supplemented or varied; headings are for reference only and do not affect the meaning of this document; the plural implies the singular and vice versa; a reference to $ or dollars means Australian Dollars (AUD); this document may not be construed adversely to a party just because that party prepared this document; and if the description of a service in general terms is followed by the more specific description of certain elements of that service, the general description of the service will be construed restrictively by reference to the elements more specifically described.
General: (Entire agreement) this document and the Sales Order contains the entire agreement between the parties about its subject matter and supersedes all prior discussions, representations, agreements and understandings between the parties in connection with the subject matter. Any attempt to vary this document or a Sales Order is not binding on IS unless it expressly agrees in writing to any such amendment. (Waiver) no failure, delay, relaxation or indulgence on the part of a party in exercising any right, power, privilege or remedy in connection with this document, operates as a waiver of that right, power, privilege or remedy nor does any single or partial exercise of any right, power, privilege or remedy preclude any other or further exercise of that or any other right, power, privilege or remedy. A waiver is not valid or binding on the party granting that waiver unless in writing and duly signed on behalf of that party. (Invalidity) if any term of this document is found to be illegal, invalid or unenforceable under any applicable law, such term will, to the extent it is severable from the remaining terms, be deemed omitted from this document and will not affect the legality, validity or enforceability of the remaining terms. (Governing law) this Agreement will be governed by the law of New South Wales and each party agrees to submit any dispute which may arise out of, under, or in connection with this Agreement to the non- exclusive jurisdiction of the courts of New South Wales. (Precedence) where there is an inconsistency between this document and a Sales Order this document will prevail to the extent of the inconsistency. (Assignment) IS may assign all or any of its rights under or in respect of a Sales Order, including granting security interests in all or any of its rights. Customer must not assign, or grant any security interest in, any right under or in respect of a Sales Order without the prior written consent of IS. (Interests) Customer warrants as an essential condition that there is no existing security interest that will apply in respect of any of its rights under or in respect of this document.
Applicable Laws means all applicable laws, regulations, regulatory requirements and codes of practice of any jurisdiction, as amended and in force from time to time.
Business Days means any day which is not a Saturday, Sunday or public or bank holiday in the state of New South Wales, Australia.
Change of Control means the happening of circumstances or events following which a person (as defined in the Corporations Act) becomes Controlled by another person, alone or together with any associates, who did not previously Control that person. Charges means the charges set out in the Sales Order and includes the Licence Fee.
Claim means any claim made under or in connection with this document or its subject matter, whether arising under contract, negligence or any other tort, under statute or otherwise.
Confidential Information includes all written, electronic or oral information relating to the business or assets of each party and its customers, clients and suppliers; the terms or subject matter of this document, and the negotiations relating to this document.
Contract Material means any Material which is written, developed, invented or otherwise created by either party in connection with the System and Services.
Control means the ability, whether directly or indirectly, to direct the affairs of another by means of ownership or otherwise.
Customer Materials means any Material in which Customer owns Intellectual Property Rights and includes the Customer Hardware and Customer Software.
Customer Hardware means any hardware supplied by Customer forming a part of the System. Customer Software means any software supplied by Customer which operates on the System.
Data means all data which IS collects in connection with the provision of Services and the System.
Documentation means technical documents connected with the System.
Fix means software produced primarily to overcome a Software Defect, including patches and bug fixes.
Group means, in relation to a body corporate, that body corporate and all its Related Bodies Corporate.
GST means a good and services tax, value added tax, consumption tax or services tax.
Hardware means the hardware to be supplied as set out in the Sales Order.
Intellectual Property Rights means all copyright and rights in the nature of copyright, design rights, patents, trade marks, data base rights, applications for any of the above, Moral Rights, know-how, domain names or any other intellectual or industrial property rights (and any licences in connection with any of the same) whether or not registered or capable of registration and whether subsisting in Australia or any other part of the world.
IS Materials means all Material in which Intellectual Property Rights are owned by IS (other than Contract Material).
Licence means the licence to use the Software as fully described in this document.
Licence Fee means the fee for the Licence as set out in the Sales Order.
Materials means any material capable of containing or representing information, including documents, files, databases, computer programs (whether in object code, source code or any other form), working papers, 7 magnetic media, prototypes, replicas, mock-ups and models.
Moral Right has the meaning given under the Copyright Act 1968 (Cth) and also includes any personal right, wherever existing in the world, protecting an author’s intellectual and personal relations to a work and includes those rights contemplated by Articles 6bis and 14ter of The Berne Convention.
New Release means an upgrade version of the Software which contains new functionality and/or results in improved performance of the Software or which has overcome a Software Defect (which upgrade version may include a Fix).
PPSA means the Personal Properties Securities Act 2009 (Cth).
Recurrent Charges means all recurring charges as set out in a Sales Order including but not limited to the Licence Fee.
Representatives means the directors, officers, employees, agents, auditors, professional advisers and sub-contractors of a party.
Related Body Corporate of a body corporate means another body corporate which is related to the first body corporate within the meaning of the Corporations Act 2001 (Cth).
Services means any service described in a Sales Order.
Software means any software supplied by IS in connection with this document including.
Software Defect means any material defect or error in the Software that results in the Software not operating substantially in accordance with the Documentation.
Site means all sites of Customer where goods or services are provided by IS.
System means the system comprising the Software and Hardware supplied by IS pursuant to a Sales Order.
Term means the period in which a Sales Order is valid.
Upfront Cost means any upfront costs described in the Sales Order.