1. Obligations of the Consultant

The Consultant together with its Related Bodies Corporate (as its subcontractors), will:
(a) provide the Services with the degree of skill, care and diligence expected of a consultant experienced in providing the same or similar services;
(b) provide the Services in a professional and competent manner;
(c) provide the Services in accordance with any reasonable directions given by the Client and at all times comply with the policies, procedures and guidelines of the Client provided the Client has conducted appropriate onboarding and training on business practice standards, codes of conduct, best practices, policies, procedures, health and safety expectations including relevant tools and systems required for the Consultant to comply.
(d) keep the Client informed of matters of which they ought reasonably to be made aware;
(e) act lawfully and comply with all Laws; and
(f) not use the Client’s name, logo or trademarks without the Client’s prior written consent.

2. Obligations of the Client

During the Term, the Client must at all times:
(a) act lawfully and comply with all laws;
(b) maintain and allocate sufficient resources to fully discharge all its obligations under this SoW;
(c) provide (or must procure the provision of) any resources so specified in the Statement of Work (“SoW”) (such resources must, to the Client’s reasonable knowledge and belief, be fit for the purpose stated in a SoW, as the case may be), required for the Consultant to provide the Services; and
(d) be available for review of the Services and deliverables as and when required by the Consultant, or the provision or disclosure of any information, permission, approval, recommendation or comment.

3. Information

(a) The Consultant may request, and the Client must ensure that the Consultant is given, all data and information reasonably required, or reasonably requested by the Consultant, to fully perform its obligations under this SoW.
(b) The Consultant will not be responsible for the consequences of any omitted or erroneous data or information. Additional costs resulting from the provision of additional Services, or the variation of Services, necessary to remedy the consequences of any omitted or erroneous data or information will be discussed and agreed by the parties in writing.

4. Open Source

The Client acknowledges that some open-source and publicly available software may be deployed from time to time by the Consultant in executing the Services.
The Consultant shall not be liable for any claims, damages, or losses arising from the use of such open-source code and software, including but not limited to any issues related to compatibility, functionality, or licensing.

The Consultant will make reasonable efforts to ensure that any open-source software used complies with its licensing terms, but the Consultant is not responsible for any consequences resulting from any changes to such licenses or from the use of open-source code in a manner that is outside the Consultant’s reasonable control.

The Consultant shall provide the Client with written notice of any significant open-source components used in the deliverables, including their respective licenses, upon completion of the Services.

5. Confidential Information Use and Disclosure and Security

(a) A party will only use the Confidential Information acquired under this SoW for the purpose of performing its obligations and exercising its rights under this SoW and warrants that it will keep all Confidential Information in confidence on an ongoing basis under this SoW.
(b) The confidentiality obligations owed under this SoW shall survive termination of a SoW.
(c) A party must not:
(i) use any of the other parties Confidential Information except to the extent necessary to exercise its rights and perform its obligations under this SoW; or
(ii) disclose or permit any other person to use any of the Confidential Information except in accordance with clauses 5.2 (d), (e), and (f).
(d) Confidential Information may be disclosed to a party’s solicitors, auditors, insurers or accountants, provided that the relevant party takes commercially reasonable steps to ensure that every person to whom that disclosure is made uses that information solely for the purposes of advising or reporting to that party;
(e) In addition to (g), the Consultant may disclose Confidential Information to its Authorised Persons reasonably required to have access to the Confidential Information if the disclosure is required to enable the Consultant to operate its Business, perform its obligations or to exercise its rights under this SoW; and
(f) A party may disclose Confidential Information that the party is required to disclose by law, but must first provide notice to the other party of such legal requirement to disclose the Confidential Information.
(g) The Client and the Consultant must each assist the other to comply with its obligations under the Privacy Act 1988 (Cth) and in relation to Confidential Information. This may include data management during and after a SoW, including without limitation, data retention, deletion and de-identification.
(h) Each party (including the Client) shall implement reasonable security measures, including encryption and secure access controls, to protect the confidentiality and integrity of the Client’s information.

6. Return of Confidential Information

(a) On request after the expiry or termination of these Terms and Conditions or any SoW, Confidential Information will be destroyed or returned to a party.
(b) Nothing in this clause 6 will require the return or destruction of any information to the extent stored in electronic backups that cannot easily be purged, or any information that a party reasonably believes will be needed beyond termination or expiry in order for it to comply with this Agreement, comply with Laws or professional obligations, comply with conditions to its insurance cover, or resolve any dispute in progress or reasonably anticipated as at the date of termination or expiry.

7. Compliance with Privacy Laws, Data Protection and Procedures

The Parties must (and must ensure that their Authorised Persons):
(a) comply with any applicable Privacy Law;
(b) comply with the privacy procedures or policies as set out in a SoW;
(c) use the Personal Information only for the purposes of fulfilling its obligations under this SoW;
(d) restrict access to the Personal Information, to only Authorised Persons who need to access the Personal Information to fulfil the party’s obligations under this SoW; and
(e) take all reasonable steps to ensure that the Personal Information is protected against misuse and loss, or unauthorised access, modification or disclosure.

8. Intellectual Property

(a) Notwithstanding any other provision of these Terms and conditions and any SoW to the contrary, the Client retains all rights in and to and in respect of the Client Intellectual Property and the Consultant retains all rights in and to and in respect of the Consultant Intellectual Property.
(b) The Consultant grants the Client a royalty-free, irrevocable, non-exclusive and non-transferable licence to exercise the Intellectual Property Rights in the Consultant Intellectual Property forming part of the Services Intellectual Property.
(c) Subject to the licence in paragraph (b) or (d) of this clause 8 confirming the Consultant retains all rights in and to and in respect of the Consultant Intellectual Property, all Intellectual Property Rights in the Services Intellectual Property will vest in and be assigned to the Client on their creation.
(d) The Client grants the Consultant a royalty-free, temporary, non-exclusive and non-transferable licence to exercise all Intellectual Property Rights in the Client Intellectual Property for the purposes of the Consultant performing its obligations under this SoW and any Statement of Work.
(e) The Client grants the Consultant a royalty-free, perpetual, irrevocable, non-exclusive and non-transferable licence to exercise all Intellectual Property Rights in any Services Intellectual Property developed during the Services. For the avoidance of doubt, the Consultant cannot sell or distribute the Intellectual Property developed during the Services.
(f) The Parties will do everything reasonably required to assign and transfer the Intellectual Property Rights and materials in the Services Intellectual Property for the purposes of this clause.

9. Maximum Liability and Indemnification

(a) The Consultant’s liability for any claims arising out of or related to these Terms and Conditions or any Statement of Work shall be limited to the total fees paid by the Client under the applicable Statement of Work.
(b) In no event shall the Consultant be liable for any indirect, incidental, special, or consequential damages, including but not limited to loss of profits or business interruption, even if advised of the possibility of such damages.
(c) The Client agrees to indemnify, defend, and hold harmless the Consultant from and against any and all claims, liabilities, damages, losses, costs, and expenses (including reasonable legal fees) arising out of or related to any third-party claims resulting from:
(i) the Consultant’s performance of services under this Agreement, except to the extent caused by the Consultant’s gross negligence or wilful misconduct; and
(ii) any materials or information provided by the Client that infringe upon the intellectual property rights of any third party.

10. Amendment

(a) No amendment or variation to a SoW is valid or binding on a party unless made in writing and executed by both parties.

11. Billing and invoicing

(a) unless stated otherwise in a SoW.
(i) Invoicing will be done every 14 days unless stated otherwise in a SoW.
(ii) Invoices are due for payment 14 days after the invoice date
(b) The Client must dispute an amount within 30 days of the invoice date. The client may withhold a disputed amount from payment if it pays any remaining amount on the invoice and attempts to resolve the dispute with best endeavours.

12. Data

Client, including Related Body Corporate, suppliers, Authorised Person, partners, agents or representatives will ensure:
(a) that they do not transfer, or cause to be transferred to the Consultant any business or operational data or records (“Data”) or copies of Data in part or in full, in any form, at any time, on, or through any medium; and
(b) that the minimum Data required by the Supplier in support of the provision of Services is made available in a secure manner on Client systems with appropriate access controls, audit trails and safeguards; and
(c) any data provided for testing, design analysis or similar activities is sample data contains no Personal Information and no Confidential Information other than that inherent in its structure and form.
The Client agrees to implement reasonable technical and organizational measures to protect personal information against unauthorized access, misuse, loss, or disclosure in the performance of its engagement with the Consultant.

13. General

13.1 Term and Termination
(a) Each SoW shall begin on the date it is signed by both of the parties and shall continue until completion of the Services and Deliverables or earlier termination by either Party in accordance with the terms of the particular SoW.
(b) Unless provided otherwise in a SoW, the Client may terminate a SoW with 30 days’ notice without cause by providing written notice to the Consultant. Where the Client terminates a SoW in accordance with this clause, the Client shall pay the Consultant for all Services performed by the Consultant up to the date of termination. If hours have been prepaid the amount of the remaining prepayment is forfeited and no refund will be provided to the Client
(c) Client may terminate this SoW immediately on written notice to Consultant where Consultant
(i) breaches the terms of this SoW and such breach is not capable of remedy;
(ii) fails to rectify any breach capable of remedy within seven days of written notice by Client of such breach; or
(iii) Consultant ceases to carry on business, ceases to pay its debts as they become due, takes steps to enter into an arrangement with its creditors, or takes any steps to appoint a receiver, receiver and manager, a trustee in bankruptcy, a liquidator, a provisional liquidator, an administrator or other like person in respect of its assets.
(d) The Consultant may terminate this SoW with 60 days’ notice without cause by providing written notice to the Client unless stated otherwise in a SoW. In the event of such termination, the Client shall pay the Consultant for all services performed and expenses incurred up to the date of termination.

13.2 Dispute Resolution:
In the event of any dispute, claim, or controversy arising out of or relating to these Terms and Conditions, the parties agree to first attempt to resolve the matter amicably through good faith negotiations. The parties shall engage in discussions within 14 days of a written notice of the dispute, specifying the nature of the dispute and the relief sought.

All negotiations, mediation, and arbitration proceedings shall be confidential and conducted on a without-prejudice basis. No party shall disclose any information relating to the dispute resolution process without the prior written consent of the other party, except as required by law.
Nothing in this clause shall prevent either party from seeking urgent or injunctive relief in a court of competent jurisdiction, or from pursuing any rights or remedies available under the law or equity that are not subject to this dispute resolution process.

13.3 Entire Contract
The Terms and Conditions and SoW together contains the entire agreement between the parties with respect to their subject matter and supersedes all prior SoWs and understandings between the parties related to these Services.

13.4 Governing Law:
This SoW is governed by and will be construed in accordance with the laws of the Contract Location stated in a SoW or if not stated where the Consultant’s registered office is located at the time of signing.

13.5 Non solicitation
During the term of the Terms and Conditions and for a period of 12 months following the termination of any SoW as agreed between the parties, the Client (both personally and as agent for any Related Body Corporate of the Client) agrees not to solicit or hire any employee or contractor of the Consultant without prior written consent from the Consultant (which may be withheld at the discretion of the Consultant).

13.6 Additional terms
To the extent that additional Client terms and conditions are supplied in the course of approving or ordering the provision of the Services, such terms and conditions will be of no legal effect and will not constitute part of these Terms and Conditions or any Statement of Work (notwithstanding the signing of any such document by a representative of the Consultant for any reason).

Definitions
The following definitions apply unless the context requires otherwise:
Australian State means one of New South Wales (“NSW”), Western Australia (“WA”), South Australia(“SA”), Northern Territory(“NT”), Queensland(“QLD”), Tasmania(“TAS”), and Australian Capital Territory(“ACT”).
Authorised Person means any officer, employee, subcontractor or Related Body Corporate of a party to this SoW.
Best Practice means generally recognised recommended industry practices.
Business means the business carried on by the Consultant, being the business of:
(a) providing consulting services to enable organisations to modernise, leverage data and artificial intelligence, and securely adopt, integrate and implement cloud technology
(b) the business described on the company website; and
(c) any other business carried on by the Consultant from time to time.
Business Day means a weekday on which trading banks are open for the transaction of banking business in the Contract Location specified in a SoW or if not stated the Australian State of the Consultants registered office.
Client Intellectual Property means all Intellectual Property Rights owned, used or exercised by the Client as at the Commencement Date.
Commencement Date means the date of each SoW (as the context allows).
Confidential Information means any written or verbal information including any record or communication received, derived, developed or otherwise acquired by, or which comes to the knowledge of either party that:
(a) is connected with a party and is obtained from a party or a party’s representatives;
(b) a party informs the other party that the first party considers it confidential or proprietary, or it would be the case that the information is such that a reasonable person would consider it confidential or proprietary; or
(c) is Personal Information within the meaning of the Privacy Act 1988 (Cth);
but does not include information that a receiving party can establish:
(a) was in the public domain at the time it was given to the party;
(b) became part of the public domain, without the party’s involvement in any way, after being given to the party;
(c) was in the party’s possession without any restriction of confidence when it was given to the party, without having been acquired (directly or indirectly) from the other party; or
(d) was received from another person who had the unrestricted legal right to disclose that information free from any confidentiality obligation.
Consultant Intellectual Property means, generally, in respect of this SoW, any Intellectual Property Rights the Consultant owned, used or exercised prior to the Commencement Date, developed by or for the Consultant independently of this SoW and/or any base Intellectual Property Rights owned by the Consultant which are necessary for the Consultant to provide the services and deliverables in connection with its Business (including the Services and deliverables under this SoW).
Corporations Act means the Corporations Act 2001 (Cth).
Deliverables means those Deliverables described in a SoW
Fees means those fees detailed in this SoW.
Intellectual Property Rights means all intellectual property rights conferred by statute, common law or in equity and subsisting anywhere in the world, including:
(a) rights in relation to:
(i) registered and unregistered copyright;
(ii) inventions (including patents, innovation patents and utility models);
(iii) confidential information, trade secrets, Technical Data and Know-how;
(iv) registered and unregistered designs;
(v) registered and unregistered trade-marks; and
(vi) topography rights and rights in databases, whether or not any of these are registered, registrable or patentable;
(b) any similar rights resulting from intellectual activity in the industrial, commercial, scientific, literary or artistic fields which subsist or may hereafter subsist;
(c) any licence or other similar right from a third party to use any of the above which is capable of being sub-licensed to any third party ;
(d) any applications and the right to apply for registration of any of the above; and
(i) any rights of action against any third party in connection with the intellectual property rights included in paragraphs (a) to (c) above,
(ii) but excluding moral rights, and similar personal rights, which by law are non-assignable.
Know-how means information, know-how and techniques (whether or not confidential and in whatever form held) including:
(a) formulae, discoveries, design specifications, drawings, data, manuals and instructions;
(b) sales marketing and promotional information;
(c) business plans and forecasts; and
(d) technical or other expertise.
Law means any statute, regulation, order, rule, subordinate legislation or other document enforceable under any statute, regulation, order, rule or subordinate legislation.
Related Body Corporate has the meaning given in the Corporations Act.
Services means the services detailed in each SoW which is to be read with the Terms and Conditions.
Services Intellectual Property means all Intellectual Property Rights created, developed, conceived, prepared or produced in connection with the provision of the Services.
Statement of Work and SoW means this document and all attachments, schedules and annexures. The terms Work Order and Agreement will carry the same meaning as Statement of Work.
Subject Matter Expert means a subject matter specialist not a recognised expert.
Terms and Conditions means the long form terms and conditions expressed as ‘Appendix 1 Terms and Conditions’ which are to be read with each SoW comprising the entire agreement between the Consultant and the Client.
Technical Data means all research materials, technical reports, test results, analyses, computer programs, computer databases, computer and software routines, network and topology diagrams and information, working papers, drawings, specifications, operating procedures and other technical and scientific data and information of whatever kind relating to or used in connection with the provision of the Services.