1. Definitions & interpretation
1.1 Definitions
In this Agreement, unless the context or subject matter otherwise require:
AF Fee means the amount of money payable to the Provider by each Client in accordance with clause 3.1 calculated as the AF Turnover x
AF Percentage.
AF Turnover means the amount of total sales made by the Client during a calendar month.
AF Percentage means 0.8% of AF Turnover.
Agreement means the terms and conditions contained in this document.
Business Day means:
(a) for receiving a notice under clause
8.8
, a day that is not a Saturday, Sunday, public holiday or bank holiday in the place where the notice is received; and
(b) for all other purposes, a day that is not a Saturday, Sunday, or public holiday in Queensland,
Australia.
Business Hours means from 8.30am to 5.00pm on a Business Day.
Confidential Information means:
(a) information that is by its nature confidential;
(b) all information, know-how and Intellectual Property in relation to the Services; and
(c) all other information treated by the Provider as confidential, regardless of its form and
whether the person receiving the information becomes aware of it before or after the date of this Agreement.
But does not include information which:
(a) is or becomes public knowledge other than by breach of this Agreement or by any unlawful means; or
(b) is in the possession of the Provider without restriction in relation to disclosure before the date of receipt from the Client; or
(c) is required by law to be disclosed; or
(d) has been independently developed or acquired by the Provider and the Provider provides written evidence to this effect within
seven (7) days of the date of this Agreement.
Commencement Date means the date that the Client accepted the terms and conditions contained in this Agreement by communicating
their acceptance to the Provider or the date that the Client continued to issue the Provider with instructions after having these terms and
conditions brought to their attention.
Course Management Software means the course and class management software developed exclusively Foundation de Alliance which the
Client is a Member.
Delivery Date means a date to be advised (If applicable).
Damages means liabilities, expenses, losses, damages and costs (including legal costs on a full indemnity basis and consequential
and indirect losses and damages including those arising out of any third Party claim.
Excluded Services means development of modifications for a specific Client that are not for the benefit of all Members, such as
custom website forms, web design alterations that relate to a specific Client’s instance of the Platform.
Force Majeure Event means, in relation to a Party, anything outside the reasonable control of the Party, including:
(a) any act or omission of a third person (except for an act or omission of the Party's Officers);
(b) fire, flood, earthquake, elements of nature or act of God; or
(c) riot, civil disorder, rebellion or revolution.
Included Services means:
(a) maintenance and updates to the Software to remain relevant to new technology standards as
reasonably determined by the Provider (for example - support for new browsers, PHP versions, and integration with Oncord Application);
(b) testing and bug fixes of the Software;
(c) ongoing development of new features for the Software that benefit the majority of Members,
determined by the Provider and the Client, acting reasonably:
(i) features will be prioritised on a collaborative / shared project management board, such
as Trello or other such third party system as nominated by the Provider at its sole discretion;
(ii) communication from the Provider to Members about notifications of new and major changes to
features;
(iii) support for the Software is to be provided by email or as directed by the Provider from time to
time - due to ability to attach screenshots for example;
(iv) urgent support (for example system down / business critical issue) to be via phone or scheduled in
advance via phone; provided that the amount of the AF Fee payable is more than the amount of time spent by officers of the Provider.
Intellectual Property Rights means all intellectual property rights, including:
(a) patents, copyright, database rights, registered designs, trademarks, logos, slogans (in each
case, whether registrable or non-registrable); and
(b) any application or right to apply for registration of any of the rights referred to in
paragraph (a).
Materials means anything delivered to the Client by the Provider that is required as part of the provision of the Services that it
developed exclusively for the Client.
Member means an entity that is a member of Fondation de Alliance that the Provider also provides Services to and uses the Course
Management Software.
Officer in relation to a Party means any of its officers, employees, contractors and agents of the Party and any related body
corporate of it.
Party means each of the Provider and the Client and together means the Parties.
Services means the Included Services and the Excluded Services, and any additional or related services, performed by the Provider
under this Agreement.
Service Charge means the Providers charges for providing Additional Services as specified in the following list on the
basis of time spent by each of its Officers:
- Project Management
- Software Architecture
- Urgent Matters
- Software Development
- Updates to Website Content
- Developing new content or functionality on the website.
- Training Sessions
- Graphics Design
- Graphics to Web Cutup
Software means the Course Management Software provided to the Client as part of the Included Services.
Oncord Application means the Oncord website management system which is licensed to the Client on the terms and conditions contained
in the End User Licence and Hosting Agreement.
Goods and Services Tax (GST) means any consumption tax imposed by government, whether at point of sale or at some other specified
occurrence, by whatever name, which operates during the term or any renewal and includes (without limitation) a goods and services tax, a
broad-based consumption or indirect tax and value-added tax. This Agreement is to be treated as taxable for the purpose of GST and each
amount payable to the Provider under this Agreement is expressed inclusive of GST.
Term means five (5) years from the date that this Support and Professional Services Agreement is agreed to by the Parties.
1.2 Interpretation
In the interpretation of this Agreement, unless the context or subject matter otherwise require:
(a) singular includes plural and vice versa;
(b) any gender includes every gender;
(c) a reference to a person includes corporations, trusts, associations, partnerships, a
government authority, and other legal entities, and where necessary, include successor bodies;
(d) references to writing include printing, typing, facsimile and other means of representing or
reproducing words, figures, drawings or symbols in a visible and tangible form, in English;
(e) references to signature and signing include due execution of a document by a corporation or
other relevant entity;
(f) a reference to time is to Queensland, Australia time;
(g) references to months mean calendar months;
(h) references to statutes include statutes amending, consolidating or replacing the statutes
referred to and all regulations, orders-in-council, rules, by-laws and ordinances made under those statutes;
(i) references to sections of statutes or terms defined in statutes refer to corresponding
sections or defined terms in amended, consolidated or replacement statutes;
(j) a reference to $A, dollar or $ is to the currency of the Australia;
(k) headings and the table of contents are used for convenience only and are to be disregarded in
the interpretation of this Agreement;
(l) where any word or phrase is given a defined meaning, another grammatical form of that
word or phrase has a corresponding meaning;
(m) each paragraph or sub-paragraph in a list is to be read independently from the others in the list;
(n) a reference to an Agreement or document is to that Agreement or document as amended, novated,
supplemented or replaced from time to time;
(o) a reference to a clause is a reference to a clause in this Agreement; and
(p) a reference to a Party includes that Party's executors, administrators, substitutes,
successors and permitted assigns.
2. Provision of Services
The Provider will provide to the Client:
(a) the Included Services in exchange for the payment of the AF Fee; and
(b) the Excluded Services in exchange for the payment of the Services Charge.
2.2 Provider to provide Services
The Provider must provide the Services to the Client in accordance with the terms and conditions contained in this Agreement.
2.3 Delay or failure in performing Client's obligations
Any delay or failure by the Client in performing its obligations under this Agreement may result in delay or failure by the Provider to
provide the Services.
2.4 Consequences of delay or failure in performing Client's obligations
If there is a delay or failure by the Client in performing its obligations under this Agreement:
(a) the Provider is not responsible for any delay or failure to provide the Services as a
consequence; and
(b) the Client must pay any additional actual cost calculated on the hourly rates as defined in
Service Charges, reasonably incurred by the Provider because of any delay or failure by the Client in performing those obligations provided
that such additional cost shall not exceed the AF Fee.
2.5 Postponement of Delivery Dates for Excluded Services
If the Provider has agreed to a Delivery Date, and cannot meet the Delivery Date, directly or indirectly, because of a delay or failure by
the Client in performing its obligations under this Agreement, any agreed relevant Delivery Date for providing the Services are put back by
the number of Business Days caused by the Client's failure or delay.
2.6 Deemed acceptance of Services
(a) Excluded Services are deemed to have been accepted by the Client if:
(i) the Provider does not receive notice from the Client within fourteen (14) Business Days
of being notified that the Services had been completed by the Provider; or
(ii) the Materials that are the subject of the Services are used without objection by the Client
for a period of fourteen days (14).
3. Payment for Services
3.1 Calculation of the AF Fee
To calculate the amount of the AF Fee the Provider will access invoices generated in the Software to determine the amount of the AF
Turnover.
3.2 Payment of the AF Fee
The Client must contribute to the payment of the AF Fee each calendar month in proportion to the amount of sales made.
3.3 Withholding Services
(a) If the Provider is not able to charge the Client’s nominated credit card for the Service Charges that are due
payable under this Agreement more than seven (7) days after they become due and payable, the Provider may immediately stop providing
Services until the Client pays all outstanding amounts.
(b) The Provider reserves its right to withhold access to the Software after thirty (30) days of
non-payment.
3.4 Quotations for Excluded Services
(a) In the case of Excluded Services, the Provider must provide the Client with a quote prior to
the commencement of work;
(b) The final cost may vary substantially from the quote due to any of the following variables:
(i) alternative courses of action may be pursued subject to the written agreement of the
parties, therefore increasing the time taken to perform the Services;
(ii) the extent to which you do not assist as agreed in writing by providing full and adequate
instructions during the performance of the Services by the Provider; and
(iii) that your written instructions change substantially.
(c) The Client acknowledges that:
(i) any quotation provided by the Provider is merely an estimate and that the Provider is not bound to the specified
price except to the extent agreed between the parties and subject to clause 3.4(a); and
(ii) the Provider will charge the Client at the hourly rates defined in Services Charges.
4. Intellectual Property Rights
4.1 Ownership
The Client owns any Intellectual Property Rights in the Materials and the Services (other than the Software) developed for the Client under
this Agreement. For the avoidance of doubt any Intellectual Property created by the Client and provided to the Provider that is necessary to
provide the Services is owned by the Client (Background IP).
4.2 Licence
The Client grants the Provider a non-exclusive, non-transferable licence to use the Background IP necessary for provide the Services in
accordance with clause.
4.3 No transfer
This Agreement does not transfer any Intellectual Property Rights in the Materials, and the methodologies developed under it, to the Client
and the Client must not represent that it owns those rights.
4.4 Conditions of licence
The Provider must:
(a) only use the Materials for its internal business purposes and in accordance with this
Agreement;
(b) sign any form or document reasonably required by the Client
(c) comply with the Provider's reasonable directions regarding use of the Materials; and
(d) if using the Oncord application, then it must have a current license to do so.
5. Limitation of Liability
5.1 Provider excludes implied conditions and warranties
The Provider:
(a) excludes any condition or warranty implied into this Agreement as far that it is allowed to do
so at law; and
(b) limits its liability for breach of any implied condition or warranty that it cannot exclude to
the greater of (at the Provider's option):
(i) for goods, repairing or replacing those goods or the cost of paying to having those
goods repaired or replaced; or
(ii) for services, resupplying the services or paying the cost of having those services
resupplied.
5.2 Limitation of liability amount
If the Client makes a claim against the Provider for any act or omission of the Provider relating to this Agreement (whether the claim is
based in contract, tort (including negligence or statute) the Provider's liability in respect of that claim is:
(a) limited to $1000 for loss of, or damage to, tangible property; and
(b) for any other claim, limited in aggregate to:
(i) if the liability arises during
the first twelve (12) months of this Agreement, the total of Service Charges actually paid for those Services that gave rise to the loss or
damage as at the date the liability arose; or
(ii) if the liability arises after the first twelve (12) months of this Agreement, the total
Service Charges paid over the preceding twelve (12) months for those particular Services that gave to the loss or damage as at the date the
liability arose.
5.3 No liability for special or consequential losses
The Provider excludes liability to the Client for any special or consequential loss including loss of opportunity, lost revenue and lost
profits and loss of data associated with the performance of services by the Client.
6. Termination
6.1 Termination by the Provider
(a) The Provider, acting reasonably may terminate this Agreement as it relates to the Excluded
Services:
(i) the Client fails to provide necessary information within a reasonable time after being
notified in writing for the Provider to complete the Services; or
(ii) the Client's credit card fails after two (2) attempts pursuant to clause 3.3 and after first notifying the Client of such failure and the Client failing to remedy the situation; or
(iii) it provides the Client with fourteen (14) days notice in writing of its intent to terminate this
Agreement provided that the Provider refunds the Client any moneys paid in connection with the Excluded Services; or
(iv) the Client engages another Party to perform the Excluded Services other than as a result of the Provider
breaching this Agreement.
6.2 Termination by the Client
The Client, acting reasonably may terminate this Agreement as it relates to the Excluded Services:
(a) by providing seven (7) days notice in writing to the Provider; and
(b) paying all outstanding amounts associated with this Excluded Services performed by the
Provider up to and including the date of termination.
7. Miscellaneous provisions
7.1 Alterations
This Agreement may only be altered in writing signed by all the Parties.
7.2 Assignment
The Provider agrees not to assign this Agreement or any of its rights and obligations without the prior written consent of the Client. The
Client agrees not to assign this Agreement or any of its rights and obligations without the prior written consent of the Provider.
7.3 Consents and approvals
Except where this Agreement expressly states otherwise, a Party may, at its discretion, give conditionally or unconditionally or withhold
any approval or consent under this Agreement.
7.4 Entire agreement
This Agreement constitutes the entire Agreement between the Parties in connection with its subject matter and supersedes all previous
Agreements or understandings between the parties in connection with its subject matter.
7.5 Force Majeure
(a) The Provider is not liable for any delay or failure to perform its obligations if such failure
or delay is due to Force Majeure.
(b) The Provider must notify the Client as soon as practical be of any anticipated delay due to
Force Majeure. The performance of the Provider’s obligations under this Agreement will be suspended for the period of the delay due to
Force Majeure.
(c) If a delay due to force majeure exceeds 30 days, the Client may terminate this Agreement
immediately on providing notice to the Provider. If the Client gives such notice to the Provider:
(i) the Provider will refund moneys previously paid by the Client under this Agreement for
which no services have been provided; and
(ii) the Client will pay the Provider a reasonable sum in relation to services rendered or costs
and expenses incurred prior to termination for which no payment has been made by the Client.
7.6 Further action
Each Party must do, at its own expense, everything reasonably necessary (including executing further documents) to give full effect to this
Agreement and transactions contemplated by it.
7.7 Governing law and jurisdiction
This Agreement is be governed by and interpreted in accordance with the laws of Queensland. The Parties submit to the non-exclusive
jurisdiction of the Courts of Queensland.
7.8 Notices
All notices to be served must be served in writing and signed by a duly authorised person. Notices may be served by:
(a) prepaid post to the address last provided to the other Party. The notice is deemed to have
been received when it would be received in the ordinary course of the post;
(b) personally serving the notice at the address last notified;
(c) transmitting the notice to the last notified facsimile number. The notice shall be deemed to
have been received if the transmission slip records that it was transmitted to that number; or
(d) sending it by email to the email address last specified.
Any notice to be served on either Party can be served at the relevant address as stated in the details section of this Agreement.
7.9 Severability
Part or all of a provision of this Agreement that is illegal or unenforceable may be severed from this Agreement and the remaining parts of
the provision or provisions of this Agreement continue in force.
7.10 Survival
Any obligation of Confidentiality and indemnity created by this Agreement is independent and survives termination of this Agreement.
7.11 Waiver
The non-exercise of, or delay in exercising a right of a Party shall not operate as a waiver of that right, nor does a single exercise of a
right preclude another exercise of it or the exercise of other rights. A right may only be waived by notice, signed by the Party (or its
authorised representative) to be bound by the waiver.
7.12 Confidential Information
(a) All Confidential Information obtained by the Provider from the Client in the course of
performing the Services must be treated as confidential and must not be disclosed to any third party.
(b) The Provider must ensure that all the Confidential Information in the custody of the Provider
for purposes connected with this Agreement is protected at all times from unauthorised access or use by a third party or misuse, damage or
destruction by any person.
7.13 Insurance
The Provider must effect and maintain professional indemnity insurance policy to a limit of at least $1,000,000.00 and adequate insurance to
cover the Provider’s liabilities at law arising under this Agreement.
7.14. Privacy
The Provider must comply with the Privacy Act 1988 (Cwth).
