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Standard Terms & Conditions
Effective: 1st April 2019
A CT4 supplies professional software development and data services.
B The Client has requested CT4 to provide the Services.
C CT4 and the Client now wish to set out their agreement herein for the provision of the Services.
D These standard terms and conditions do not supersede the terms and conditions in any written agreement.
2.1. Whenever used in the Agreement, unless the subject matter or context otherwise requires, the following terms have the following meanings:
(1) “Agreement” means the agreement entered into by the parties as amended from time to time and any indenture, agreement or instrument supplemental or ancillary hereto or in implementation hereof;
(2) “Background IP” means Intellectual Property created by CT4 prior to or independently of the Agreement and engagement;
(3) “Client” means any customer who engages with CT4 for services or consumes CT4 services;
(4) “Data Controller” means a person who (either alone or jointly or in common with other persons) determines the purposes for which and the manner in which any personal data is or is to be processed as set out in either the DPA or GDPR;
(5) “DPA” means The Data Protection Act 2018 (United Kingdom)
(6) “Data Processor”, in relation to personal data, means any person (other than an employee of the data controller) who processes the data on behalf of the data controller, as set out in either the DPA or GDPR.
(7) “Force Majeure Event” means any irresistible and unforeseeable event external to the Parties which makes it impossible for a Party to execute all or part of its obligations under the Agreement;
(8) “GDPR” means Regulation (EU) 2016/679 (General Data Protection Regulation)
(9) “IP” means patents, copyright, trade marks, service marks, trade names, domain names, logos, get-ups, inventions, registered and unregistered design rights, database rights, industrial design, integrated circuit topography and all other intellectual property rights;
(10) “Month” means calendar month;
(11) “Parties” means the CT4 and Client, and “Party” means any one of them.
(12) “Person” means any individual, company, corporation, partnership, firm, trust, sole proprietorship, government or entity howsoever designated or constituted;
(13) “Rates” means the rates for the Services as set out in either a quote, statement of work or formal agreement with the client;
(14) “Related Entity” means a body corporate that is a holding company, subsidiary or a controlling entity;
(15) “Representative” of a Party includes an employee, agent, officer, director, auditor, advisor, partner, consultant, joint venturer, contractor or sub-contractor of that Party or of a Related Entity of that party;
(16) “Services” means the services as set out in either a quote, statement of work or formal agreement with the client;
(17) “Term” means the term of the Agreement as determined in accordance with clause 5; and
2.2. In the Agreement unless the context otherwise requires:
(1) the singular includes the plural and vice versa;
(2) the use of one gender includes all other genders;
(3) where any word or phrase is given a defined meaning in this Document, any part of speech or other grammatical form of that word or phrase has a corresponding meaning; and
(4) person means and includes a natural person, firm or corporation;
2.3. The division of the Agreement into articles and insertion of headings is for convenience and reference only and does not affect the construction or interpretation of the Agreement.
2.4. Any reference to the Agreement means and includes the recitals, clauses, schedules, certificates and annexures to the Agreement, each of which form part thereof.
2.5. Unless the context otherwise requires, references in the Agreement to the recitals, clauses, schedules, certificates or annexures or any item thereof, mean and constitute references to the Recitals, clauses, schedules, certificates or annexures (if any) of this Document.
2.6. The recitals hereto form an integral part of the Agreement.
3.1. All references to clauses in the Agreement or any other document unless otherwise expressly stated, are references to clauses numbered in this agreement or the document in which the reference appears respectively.
4.1. CT4 shall carry out and complete the supply of Services in accordance with the Agreement.
5.1. The Term is as set out in the Agreement between the parties.
5.2. At the end of the term and unless the Client provides no less than 30 days’ written notice of Termination, the Agreement will automatically renew for the agreed term.
6.1. This agreement shall be subject to, governed by and interpreted in accordance with the laws of:
(1) Queensland, Australia for all clients in Australia and New Zealand;
(2) United Kingdom, for all clients in the United Kingdom and the European Union;
(3) Singapore for all clients in South East Asia and the United States of America; and
6.2. for every purpose and the Parties agree to submit to the exclusive jurisdiction of the courts in the jurisdictions aforementioned herein.
7.1. Both Parties shall, at their own cost, obtain and maintain all licenses, permits, certifications and regulatory authorisations without any restriction or qualification whatsoever as to enable both Parties to fulfil their obligations under the Agreement.
7.2. Both Parties shall, in performing their obligations under the Agreement, comply with all applicable laws and shall keep each respective Party indemnified against all penalties and liabilities of every kind for breach of any such laws.
8.1. The Client must pay CT4 for the Services at the Rates.
8.2. In respect of Services provided, or to be provided, during a Month the Client must make payment for those Services to CT4 within 30 days from the date on the invoice received by the Client or on a prearranged via a direct debit facility.
8.3. All payments by the Client to CT4 for the Services will be made via electronic transfer into CT4’s nominated bank account.
8.4. Unless otherwise agreed between the Parties, money references under the Agreement shall be as laid out in the Agreement.
8.5. The Rates are exclusive of all applicable taxes.
8.6. Non-payment to the Client by any other party shall not relieve the Client from its obligations in the Agreement, unless the reason for such non-payment is directly attributable to any negligence or breach of the Agreement on the part of CT4.
8.7. Invoices shall be rendered to the Client by email.
8.8. All fees for payments to CT4including, without limitation, administrative fees in respect of telegraphic transfer payments made to CT4under the Agreement, shall be borne by the Clientand not by CT4.
8.9. If the Client disputes any amount shown on an invoice, it must notify CT4 within 21 calendar days of receipt of the invoice and must pay any amounts not in dispute in accordance with clause 8.2.
9.1. If the Client defaults in the payment for the Services when due, interest will be applied to the payment sum until such time as the sum is received in CT4 bank accounts.
9.2. Interest shall be set at 5.5% per annum and will be calculated and accrued daily.
10.1. During the Term, CT4 must provide the Services as contemplated in the Agreement.
10.2. Any service required by the Client in addition to the Services shall be deemed to be excluded from the Agreement.
10.3. Any additional Services required by the Client not included in the Agreement shall require a Variation to Agreement, agreed and executed by both the Client and CT4.
11.1. The Rates as shall be deemed to be all-inclusive.
11.2. Any service not contemplated or any additional scope applied to the Services will incur additional Rates to be agreed by CT4 and the Client in a Variation to Agreement.
12.1. CT4 warrants that it has the power to enter into, perform and comply with the obligations under the Agreement. CT4 undertakes to provide the Services in accordance with the Agreement, in a proper and professional manner and otherwise in accordance with industry standards.
12.2. CT4 undertakes at all times to:
(1) use its best endeavours to provide the Services at their best possible quality;
(2) proactively assess the Services with a view to ensuring a level of quality in accordance with clause13;
12.3. CT4 further warrants and undertakes that it shall:
(1) provide the Client with reasonable information and assistance in relation to the Services;
(2) reasonably assist the Client in the investigation of any fraudulent use or other misuse of any Services;
(3) identify obtain and maintain, all licenses, certificates, approvals, consents, permits and authorisations required by the applicable legal requirements regulating the provision of the Services and the supplier of such Services (whether by CT4 or its subcontractors), for CT4 and/or its subcontractors to provide the Services and to perform its obligations under the Agreement.
13.1. Either CT4 or the Client may terminate the Agreement including any Statement of Work set forth under the Agreement, effective immediately, without prejudice and without liability for any damages in the event any of the following occur to the other party:
14.1. In the event of termination or expiry of the Agreement, CT4 warrants that it shall for a period of thirty (30) days from the date of termination or expiry:
14.2. Notwithstanding anything to the contrary, the termination or expiry of the Agreement, shall be without prejudice to any accrued rights or obligations of either party, and to any other rights and remedies of either party in law.
15.1. If the Client materially breaches any of its representations, warranties or obligations under the Agreement or fails to make a payment of any amount due to CT4 under the Agreement other than where the Client is entitled to exercise any of its rights under clause 8.9(“the Client Default”), then this clause 15will apply.
15.2. If a Client Default is not remedied within 30 days of the Client Default arising, CT4 may serve a notice of default (“the Client Default Notice”) on the Client.
15.3. A Client Default Notice must:
(a) (if the breach is capable of being remedied) cease provision of all or any part of the Services until such time as the Client Default is remedied; or
(b) terminate the Agreement by notice to the Client.
(a) the amount owing the subject of the Client Default; and
(b) reasonable out-of-pocket expenses which CT4 has incurred or will incur solely as a result of termination of the Agreement and which it is unable to otherwise recover or mitigate, including as a result of (if applicable).
15.4. For the purposes of clause 15(3)with such access to its records, books and (subject to confidentiality restrictions) contracts as the Client may require in order to verify the amounts claimed by CT4.
16.1. Neither party shall be liable for any failure to perform its obligations under the Agreement if the failure results from events beyond its reasonable control (“Force Majeure Events”) provided always that whenever possible the affected Party will resume that obligation as soon as the factor or event occasioning the failure ceases or abates. For purposes of the Agreement, “Force Majeure Event” shall include acts of God, acts of civil or military authority, civil disturbance, wars, strikes, fires and other catastrophes.
16.2. If the effect of any Force Majeure Event continues for a period exceeding two (2) weeks, either Party may at any time thereafter give notice to the other party to terminate the Agreement with immediate effect without being liable for damages or compensation.
16.3. If a Force Majeure Event occurs, CT4 or the Client (as the case may be) shall for the duration of such Force Majeure Event be relieved of any obligation under the Agreement as is affected by the Force Majeure Event except that the provisions of the Agreement shall remain in force with regard to all other obligations under the Agreement which are not affected by the Force Majeure Event.
Notwithstanding anything in the Agreement, in the event of any dispute, claim, question or disagreement arising out of or relating to the Agreement (a “Dispute”), a Party may give to the other Party a notice (“Dispute Notice”) specifying the Dispute and requiring its resolution under this clause 20.
17.1. A Dispute Notice must:
17.2. If the Dispute is not resolved within 7 days after a Dispute Notice is given to the other Party, each Party must nominate one representative from its senior management with authority to resolve the Dispute (each, a “Dispute Representative”).
17.3. If the Dispute is not resolved within 30 days of the Dispute being referred to the respective Dispute Representatives, then either Party may, after giving written notice to the other Party, commence legal proceedings in an appropriate court within the relevant jurisdiction to resolve the matter.
17.4. During the existence of any Dispute, the Parties must continue to perform all of their obligations under the Agreement without prejudice to their position in respect of such Dispute, unless the Parties otherwise agree.
17.5. Service of the notices under, and compliance with the process outlined in this clause 17are conditions precedent to the commencement of any litigation in respect of a Dispute.
17.6. Nothing in this clause 17prevents a Party from seeking any urgent interim or interlocutory relief which may be required in relation to the Agreement.
17.7. The Parties agree that:
18.1. CT4 will not be held liable for any liquidated damages or consequential loss associated with the provision of the Services.
19.1. Each Party will retain all rights in and to its patents, patent applications, patent disclosures, inventions and improvements (whether patentable or not), copyrights and copyrightable works (including computer programs) and registrations and applications therefor, including any software, firmware, or source code, trade secrets, know-how, database rights, drawings and all other forms of intellectual property (other than trademarks) (collectively, Intellectual Property) created, developed or conceived prior to the Commencement Date or outside the performance of Services and, in each case, without use of or access to any Confidential Information of the other Party.
19.2. To the extent CT4 creates any updates, derivative works, changes or modifications of any Intellectual Property owned by CT4 or Intellectual Property incorporating any CT4 Confidential Information in performance of the Services, such updates, derivative works, changes, modifications or Intellectual Property will be owned solely by CT4 and the Client hereby irrevocably assigns to CT4 all right, title, and interest in and to such, including all Intellectual Property therein to the extent set forth.
20. 1 CT4 warrants that:
(1) it owns or has obtained valid licences for all IP rights that are necessary to perform its obligations under the Agreement and shall maintain the same in full force and effect for the duration of the Agreement;
(2) The usage of the Services under the Agreement does not infringe the Intellectual Property Rights of any third party; and
(3) no third party has threatened or, so far as it is aware, is currently threatening proceedings in respect of any IP infringement, and none of its Background IP rights is the subject of any actual or, so far as it is aware, threatened challenge, opposition or revocation proceedings.
21. Data Security and Protection
21.1 CT4 undertakes:
22.1. CT4 undertakes to:
(1) notify the Client of any actual, potential, or suspected physical security breach, as soon as practicable, and in any event, immediately after CT4 becomes aware of the actual, potential, or suspected physical security breach; and
(2) notify the Client of any actual, potential, or suspected cyber-security or data breach, as soon as practicable, and in any event, immediately after CT4 becomes aware of the actual, potential, or suspected cyber-security or data breach.
22.2. In the event of an actual, potential, or suspected security or data breach, CT4 shall extend full cooperation and assistance and at no cost to the Client to:
(1) assist with any investigation into the actual, potential, or suspected security or data breach; and
(2) make available all records, logs, files, data reports, and materials that may be relevant to the investigation of the security or data breach.
22.3. CT4 shall, at no cost to the Client, use best endeavours to immediately remedy any actual or suspected security or data breach, or to prevent any potential security or data breach.
22.4. CT4 shall not inform any third party of any security or data breach without first obtaining the Client’s prior written consent, except where required under law.
23. Additional works
23.1 If the Client requires CT4 to provide services which are in addition to the Services, then if those services are:
23.2 Nothing in clause 1obliges CT4 to provide services which might reasonably cause it to breach any warranty provided by CT4 in the Agreement.
24.1. If the Client requires a variation to the Services or Agreement, it must give written notice to CT4.
25.1. If any supply made under this document is a taxable supply, the Recipient of that supply must pay to the Supplier, in addition to the consideration for the taxable supply, any tax paid or payable by the Supplier in respect of the taxable supply.
25.2. The Recipient must pay the tax to the Supplier at the same time as the consideration is payable.
25.3. Notwithstanding any other provision of this agreement, the Recipient is not required to pay any amount unless it has received a valid tax invoice (or valid adjustment note) for that taxable supply.
25.4. If a Party has a right to be reimbursed or indemnified for any cost or expense incurred under this document that right does not include the right to be reimbursed or indemnified for that component of a cost or expense for which the reimbursed or indemnified party can claim an input tax credit.
26.1. Any notice, request, waiver, consent or approval (“Notice”) shall be in writing and shall be deemed to have been duly given or made when it is delivered by hand or by prepaid registered post or fax to the Party at its registered office address or designated email address.
27.1. In the event any provision in the Agreement is determined to be illegal, invalid or unenforceable, in whole or in part, such provision or part of it shall, to the extent it is illegal, invalid or unenforceable, be deemed not to form part of the Agreement and the legality, validity and enforceability of the remainder of the Agreement shall not be affected.
28.1. Any provision of the Agreement that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Agreement shall survive the termination or expiry of the Agreement, including Clauses:
(1) 6 Applicable Law
(2) 9 Default Interest
(3) 13 Termination
(4) 14 Effect of Termination and Expiry
(5) 17 Dispute Resolution
(6) 18 Liquidated Damages
(7) 19 Intellectual Property
(8) 20 Patent and Copyright
(9) 26 Notices
(10) 27 Severability
(11) 28 Surviving Provisions
(12) 29 General
(13) 30 Indemnity
(14) 31 Limitation of Liability
(15) 32 Confidentiality, Publicity and Data Protection
(16) 33 Data Protection Regulation
(17) 34 Assignment
29.1. The provisions of the Agreement, except as otherwise provided, inure to the benefit of and are binding upon the parties hereto and their respective, executors, administrators, successors and assigns and each and every person so bound shall make, execute and deliver all documents necessary to carry out the Agreement.
29.2. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and the transactions herein contemplated and replaces all previous agreements and understandings, if any, between the parties with respect to the subject matter hereof and the transaction contemplated herein. If there is any conflict or inconsistency between the body of the Agreement and any of the Schedules, the body of the Agreement is paramount.
29.3. This Agreement may be executed in one or more counterparts each of which when so executed shall be deemed to be an original and such counterpart together shall constitute but one of the same instrument.
29.4. If any provision of the Agreement is held invalid or unenforceable in any jurisdiction, such invalidity or unenforceability shall attach only to such provision in such jurisdiction and does not in any manner affect or render invalid or unenforceable such provision in any other jurisdiction or any other provision of the Agreement in any jurisdiction.
29.5. Except as provided therein, the failure on the part of one party, in any one or more instances, to insist upon the keeping, performance or observance of any of the terms, conditions or provisions of the Agreement, or to exercise any right or privilege herein conferred, must not be construed as relinquishment of that party’s right to require the future keeping, performance or observance of any such terms, conditions or provisions.
30.1. Subject to clause 30herein, and without prejudice to Parties’ rights under any other provision of the Agreement, either Party (“Indemnifying Party”) shall indemnify, defend and hold the other Party (“Indemnified Party”) andtheir employees, servants, officers and agents (collectively “Indemnitees”), from and against any and all losses which may be sustained, instituted, made or alleged against, or suffered or incurred by Indemnitees, and which arise out of, in the course of or in connection with one or more of the following:
(1) any breach or non-performance by the Indemnifying Party of any of its undertakings, warranties or obligations under the Agreement;
(2) any action, claim or demand brought or threatened against Indemnitees that alleges or is based on a claim that the use, access or receipt of Services by Indemnitees infringes any intellectual property rights and/or any other rights of whatever nature of any third party;
(3) from all personal injury, death, loss of or damage to property arising from any act or omission of the Indemnifying Party, its employees, agents, servants or subcontractors;
(4) from any negligent act or omission or wilful default, misconduct or fraud of the Indemnifying Party, its employees, agents, servants or subcontractors;
(5) any claims by any workmen, employee or agent of the Indemnifying Party or its subcontractor for any personal injury and/or death suffered in connection with the performance of the Agreement;
(6) any malfunction of the hardware (if any), software and/or Services in so far as attributable to the Indemnifying Party’s negligence; and
(7) any breach of any legal requirement by the Indemnifying Party or any of its subcontractors.
30.2. Notwithstanding any other provision of the Agreement, except with the prior written consent of the other Party, either Party shall not:
(1) settle or compromise any cause of action, suit or other proceeding if the settlement or compromise obliges the Indemnifying Party to make any payment or bear any liability or be subject to any injunction or other interim measures by reason of such settlement or compromise;
(2) assume any obligation or grant any rights or licences on behalf of the other Party; or
(3) make any statement at any time admitting liability for or on behalf of the other Party.
31.1. The limit of either Party’s liability shall not in the aggregate exceed:
(1) in the case of the Client’s liability, the aggregate charges payable by the Client to CT4 under the Agreement; and
(2) in the case of CT4’s liability, the greater of the aggregate charges payable by the Client to CT4 under the Agreement,
provided that any liability arising out of protection of intellectual property and confidentiality obligations under the Agreement shall be excluded from such limit.
31.2. To the extent permitted under the law, neither party shall be liable, whether in contract, tort or otherwise (including negligence), for any indirect, consequential, economic or exemplary loss or damage (including loss of revenue, profits, business, contracts, records or data, anticipated savings or goodwill) in connection with the Services or Agreement, even if such loss or damage is reasonably foreseeable or if the relevant Party had been advised of the possibility of such loss or damage.
32.1. Neither Party shall use or disclose the other Party’s Confidential Information (including the existence and terms of any part of the Agreement) save for the purposes of the proper performance of the Agreement or with the prior written consent of the other party. “Confidential Information” means any oral, written or electronic data and information in existence during the course of the Agreement relating to the business and management of either Party and to which access is granted or obtained by the other Party, but does not include any data or information which:
32.2. This obligation under the Agreement shall survive for two (2) years after the termination or expiry of the Agreement and the parties herein warrant and undertake that the Confidential Information shall only be used solely in connection with the Agreement and not for its own benefit or the benefit of any third party. Any use of the Confidential Information by the Affiliate of either party shall be allowed. For the purpose of this Clause, “Affiliates” shall mean any entity that directly or indirectly controls, is controlled by, or is under common control with such Party, where “control” means ownership of, or the power to vote, at least twenty (20%) of the voting stock, shares or interests of such entity.
32.3. Parties shall at all times observe and comply with the privacy and data protection laws in the jurisdiction and all applicable laws and regulations relating to processing of personal data and privacy, including where applicable the guidance and codes or practice registered with or issued by the. No Parties shall perform its obligation under the Agreement in such a way as to cause the other to breach any of its applicable obligations under applicable legislation.
32.4. Upon termination/expiry of the Agreement, each Party shall be entitled to retain copies of such materials or any related documentation for archival purposes and to satisfy its respective obligations under the applicable law
33.1. In this section 33, the DPA and GDPR are used interchangeably and are taken to require the same level of regulation.
33.2. It is agreed that in relation to the Agreement, the Client shall act as the Data Controller and CT4 will act as the Data Processor.
33.3. In accordance with the DPA, this agreement meets the requirement to have in place a written contract with the data processor. The Data Processor will act only on instructions from the Data Controller and will comply with security obligations equivalent to those imposed on the Data Controller itself.
33.4. This Agreement sets out the subject matter and duration of the processing, the nature and purpose of the processing and the type of personal data and categories of data subject.
33.5. The “Data Processor” will:
(1) only act on the written instructions of the Data Controller as laid out in the Agreement.
(2) ensure that people processing the data are subject to a duty of confidence;
(3) take appropriate measures to ensure the security of processing;
(4) only engage sub-processors with the prior consent of the controller and under a written contract;
(5) assist the Data Controller in providing subject access and allowing data subjects to exercise their rights under the GDPR;
(6) assist the Data Controller in meeting its GDPR obligations in relation to the security of processing, the notification of personal data breaches and data protection impact assessments; in accordance with section 22of this agreement.
33.6. Upon termination/expiry of the Agreement, personal data will either be deleted completely or anonymized, for example by aggregation with other data so that it can be used in a non- identifiable way for statistical analysis and business planning.
33.7. Upon written request, the Data Processor will, where appropriate, in accordance with its security protocols, provide the Data Controller with the required information to ensure both parties are meeting their obligations.
33.8. The Data Processor will inform the Data Controller immediately if it is asked to do something infringing the GDPR or other data protection law of the EU, a member state of the EU or of the United Kingdom.
34.1. Neither Party may assign or transfer to a third party, or charge or sub-contract its rights or obligations under, this MSA or a SOW, without the other Party’s prior written consent, such consent not to be unreasonably withheld.
34.2. CT4 may assign its rights and obligations under this MSA to a Related Entity with the Company’s prior written consent, such consent not to be unreasonably withheld.
34.3. The Client may assign its rights and obligations under this MSA to a Related Entity, subject to prior written notification to the Consultant.
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