Terms and Conditions

humanIT provides a range of information technology services, including:

project services;
application management;
systems integration;
technology support services; and
technology management services
This Master Agreement sets out the terms and conditions under which humanIT supplies these services.

Part A – Terms:

1. Parties
The parties are:

(a) humanIT Pty Ltd ACN 098 981 269 (‘humanIT’, ‘us’, ‘we’ or ‘our’); and

(b)the client named in schedule item 2 (‘you’ or ‘your’)

2. Date and Term

This Master Agreement:

(a) is made on the date in schedule item 1; and

(b) may be terminated by either party on three (3) month’s written notice provided no Service Contracts made under it are in force.

3. Fees

(a) The fees for our services are the fees specified in the attached proposal.

(b) If we perform any work that is not covered by the attached proposal we may charge for that work:

at our current published rates for that type of work; or
if there are no current published rates, at our time and materials rates for similar work.

4. Expenses

You must reimburse our out of pocket expenses provided:

(a) the expenses have been previously agreed to in writing; and

(b) we supply reasonable evidence substantiating the expense.

5. Invoicing and Payment

(a) We will invoice you:

in accordance with any payment schedule specified in the attached proposal;
monthly in advance for pre-paid fees; or
monthly in arrears.
(b) You must pay each invoice in full:

by the due date specified in the invoice; or
if no due date is specified, within 14 days of the invoice date.
(c) Late invoicing does not affect our right to payment or your obligation to pay.

(d) If a payment is overdue, in addition to our other rights:

we may charge interest on the overdue amount at the penalty interest rate, calculated daily;
we may withhold providing Services under any Service Contract; and
you must indemnify us against all costs and expenses (including legal expenses on a solicitor/client basis) incurred by us in attempting to recover the overdue amount.
Penalty interest rate as fixed by the Attorney-General under Section 2 of the Penalty Interest Rate Act 1983.

6. Third party charges

(a) You are responsible for all third party charges incurred as a result of your use of the Service (for example, telecommunications carriage fees) unless we specify otherwise in writing.

(b) Where we specify that our fees include third party charges, we may increase our fees by written notice to you if there is an increase in third party charges.

7. GST

(a) Terms in this clause have the same meaning as in the A New Tax System (Goods and Services Tax) Act 1999.

(b) Unless stated otherwise, fees stated under this agreement exclude GST.

(c) The consideration payable by you under this agreement is the value of any taxable supply for which payment is to be made.

(d) Subject to us supplying you with a valid tax invoice, if we make a taxable supply in connection with this Agreement or a Service Contract for a consideration, which represents its value, then you must pay, at the same time and in the same manner as the value is otherwise payable, the amount of any GST payable in respect of the taxable supply.

(d) Subject to us supplying you with a valid tax invoice, if this Agreement requires you to pay, reimburse or contribute to an amount paid or payable by us in respect of an acquisition of a taxable supply from a third party, the amount required to be paid, reimbursed or contributed by you will be the value of the acquisition by us less any input tax credit to which we are entitled plus, if our recovery from you is a taxable supply, any GST payable under clause 7(d).

8. Service delivery

We will provide the Service:

(a) during Business Hours, unless otherwise specified in writing;

(b) at the location(s) agreed between both parties; and

(c) with professional skill and care, using appropriately qualified personnel.

‘Business Hours’ means between 8.30 am and 5.30 pm, Monday to Friday excluding public holidays in Victoria or at the place in which the service is to be provided.

9. Service Standard

(a) We do not warrant that the Service will be uninterrupted or error free.

(b) If service levels are specified in a Service Pack, we will use all reasonable efforts to meet or exceed those service levels.

(c) We do not guarantee that service levels will be met. If a Service Pack specifies that credits or rebates will apply, those credits or rebates are your sole remedy in respect of service level failure.

10. Access

(a) You must provide us with reasonable and timely access to your facilities, premises, information, equipment, personnel, network and data to enable to fufil our obligations under a Service Contract.

(b) We will not be responsible for any delay in providing a service where the delay results from your failure to provide timely access in accordance with clause 10(a).

11. Your obligations

(a) You must:

comply with our reasonable and lawful directions in relation to the Service;
provide a safe working environment for our personnel
comply with all laws, regulations, policies and guidelines (including any acceptable use policy that we inform you of) applicable to the Service;
ensure that any incumbent provider who is transitioning the Service to us makes available the information, resources and facilities required by us to provide the service; and
maintain regular and complete backups of all of your data.
(b) We will not be responsible for any failure, default or delay to the extent caused by your failure to perform your obligations under this clause.

12. Delay

(a) We will use our best efforts to meet any deadlines or milestones that we promise to meet but will not be liable for any delay or failure to meet these.

(b) To the extent that our provision of a service is impaired by:

a third party
a failure or defect (not caused by us) in hardware or software (not supplied by us); or
an event beyond our reasonable control –

we will notify you immediately of the impairment and if both parties agree our obligation to provide the service is suspended;
we will not be liable to you in respect of any delay or failure to provide the Service during that suspension period.
(c) Where our personnel are delayed from performing a Service due to a delay you cause, we may invoice you those personnel’s hourly rate for the duration of the delay subject only to us making reasonable efforts to reallocate our personnel to other chargeable duties.

13. Confidentiality

(a) A party must not use or disclose the other party’s confidential information without prior written approval.

(b) Each party must take all reasonable steps to ensure that its employees and agents do not use or disclose the other party’s confidential information.

(c) A party may disclose confidential information where required by law or the rules of a stock exchange.

(d) This clause survives termination of this agreement.

(e) ‘Confidential information’ means all information treated by the owning party (‘discloser’) as confidential and:

provided to the other party (‘recipient’); or
of which the recipient becomes aware –
except information that:the recipient creates or lawfully obtains independently of the discloser; or
is public knowledge (otherwise than as a result of a breach of confidentiality by the recipient).

14. Intellectual property rights

(a) Any intellectual property created for you is vested to you.

(b) To the extent necessary for you to receive the benefit of our services, we grant you a non-exclusive, non-transferable, license to use our materials.

(c) If any of your materials become combined with our materials with your knowledge and without your objection, then we have a perpetual, royalty-free, irrevocable, non-exclusive license to copy, use, adapt and distribute those materials in the course of our ongoing business.

(d) ‘Intellectual property rights’ includes all patents, copyright, rights in circuit layouts, registered designs, trademarks, trade, business or company names and the right to have confidential information kept confidential.

15. Limitation of liability

15.1 Rights and remedies for non-PDH goods costing no more than $40,000
If we supply you with goods or services not of a kind ordinarily acquired for personal, domestic or household use or consumption but costing no more than $40,000 you have extensive rights under the Australian Consumer Law including consumer guarantees and remedies but:
(a) in relation to these goods, our liability for failure to comply with a consumer guarantee (other than certain guarantees about ownership and undisturbed use) is limited to:
(i) replacing the goods or supplying equivalent ones;
(ii) repairing the goods;
(iii) paying the cost of replacing the goods or of acquiring equivalent ones; or
(iv) paying the cost of having the goods repaired; and
(b) in relation to these services, our liability for failure to comply with a consumer guarantee is limited to:
(i) supplying the services again; or
(ii) paying the cost of having the services supplied again.

15.2 Exclusion of implied terms and limitation of liability
(a) Subject to clause 15.1:
(i) Any representation, warranty, condition, guarantee or undertaking that would be implied in these terms by legislation, common law, equity, trade, custom or usage or otherwise is excluded to the fullest extent permitted by law.
(ii) We do not warrant or represent the performance, accuracy, or reliability of our goods and Services or that they will operate or be delivered free from faults, errors or interruptions.
(iii) We are never liable to you for, and you release us from any Claim for, any Contract Loss.
(b) For the purposes of this clause 15:
(i) ‘Claim’ means any claim, demand, action, proceeding or legal process (including by way of set off, cross-claim or counterclaim);
(ii) ‘Contract Loss’ means loss or damage suffered by you and arising in connection with or out of these terms or any supply made under them or any Service (whether pleaded in contract, tort, breach of statutory duty or on any other basis, and whether arising from acts or omissions, and whether or not loss or damage the risk of which we were or should have been aware), including but not limited to economic loss, business interruption, loss of revenue, profits, actual or potential business opportunities or contracts, anticipated savings, loss of profits, loss of data, indirect or consequential loss, an obligation to indemnify another person or an obligation to contribute to the compensation of loss or damage suffered by another person

16. Warranty and Indemnity

(a) You warrant that you have not relied on any representation made by us which has not been stated expressly in this agreement, or attached proposal.

(b) You must indemnify us, our employees and agents against any loss (including reasonable legal costs and expenses) or liability any of us reasonably incurs or suffers arising from any proceedings where such loss or liability was caused by:

your breach of this agreement; or
your wilful, unlawful or negligent act or omission.

17. Termination and suspension of Service Contracts

(a) Either party may terminate or suspend performance of a Service Contract immediately if the other party:

breaches the agreement and fails to remedy the breach within 14 days after receiving a notice detailing the breach and requiring that it be cured;
becomes insolvent;
fails to pay money owed to the other party within 45 days of it being due;
ceases, or threaten to cease, carrying on business;
you exceed your credit limit or there is an adverse change in our credit assessment of you;
reasonably believes that a service has been used for unauthorised, criminal or unlawful activity; or
has an administrator or controller (as those terms are defined in the Corporations Act 2001) appointed in respect of any of your assets.
(b) Termination of a Service Contract does not affect a party’s right of action based on any breach before the termination.

(c) On termination a party may:

repossess their property in possession, custody or control;
pursue any additional or alternative remedies provided by law.
(c) On termination we;

will cease providing Service; and
retain all moneys paid to us under the Service Contract; and
may provide you with an invoice for all unpaid fees and expenses and any costs incurred by us as a result of termination

18. Notices

(a) All notices must be:

in writing;
signed by the party giving it (or its authorised representative); and
sent to a party’s service address.
(b) A party’s service address is any of:

in the case of a corporation, its current registered office;
the parties’ service addresses set out in schedule items 3 and 4;
or any other address a party nominates, by written notice to the other party, as a service address.

19. General Matters

(a) We are an independent contractor and have no authority to bind you by contract or otherwise.

(b) We may sub-contract the performance of this agreement if we obtain your prior written consent (which you must not unreasonably withhold).

(c) A party may assign its rights and obligations under this agreement if it obtains the other party’s prior written consent (and the other party cannot unreasonably withhold its consent).

(d) References to a ‘schedule item’ are references to an item in the schedule to this agreement.

(e) If a party overlooks a breach of this agreement by the other party on one of more occasions, it is not taken to have agreed to any future breach.

(f) This agreement is the entire agreement between the parties with respect to the services and all prior agreements regarding the services are superseded.

(g) No amendment or modification of this agreement is binding unless in writing and executed by the parties.

(h) Anything that is unenforceable must be read down, to the point of severance if necessary.

(i) Anything a party can do, it may do through an appropriately authorised representative.

(j) Any matter in our discretion is in our absolute and unfettered discretion.

20. Applicable law and disputes

(a) This agreement is subject to the laws that apply in Victoria, Australia.

(b) Any dispute or difference arising in connection with this agreement will be submitted to arbitration in accordance with and subject to the Institute of Arbitrators and Mediators Australia Expedited Commercial Arbitration Rules.

(c) Otherwise, legal proceedings relating to this agreement or any dispute about it must be brought in the courts of Victoria, Australia.

21. Interpretation

(a) Headings are for navigational assistance only and do not affect the meaning of this agreement.

(b) Where a term is said to ‘include’ one or more things, the list is not exhaustive and does not limit the natural meaning of the term in any way.

(c) A schedule or attachment to a document (including a schedule or attachment to this agreement) is part of that document, as is any document incorporated by reference.

(d) A reference to the singular includes the plural and vice versa.

(e) There is no significance in the use of gender-specific language.

(f) A ‘person’ includes any entity which can sue and be sued and any legal successor to or representative of that person.

(g) A reference to a law includes any amendment or replacement of that law.

(h) A provision must not be construed to the disadvantage of a party because that party prepared or required it.