Terms

HASTWELL PTY LTD

GENERAL TERMS AND CONDITIONS OF SERVICE

The Customer (“you”, “your”) has engaged Hastwell Pty Ltd (ACN 619 710 879) (“Hastwell”, “we”, “us”, “our”), and Hastwell has agreed to provide to the Customer, products and/or services as specified in the relevant project proposal, quotation, statement of work, or other document specifying the scope and particulars of our products and/or services (“SOW”), in accordance with the terms and conditions set out herein.

1 Definitions and interpretation

1.1 In this Agreement, unless context indicates otherwise, the following capitalised terms shall have the corresponding meanings set out below:

“Agreement” means these terms and conditions including all applicable annexures, as varied from time to time.

“Associated Entity” has the meaning set out in section 50AAA of the Corporations Act 2001 (Cth).

“Australian Consumer Law” means Schedule 2 of the Competition and Consumer Act 2010 (Cth).

“Background IP” means the Intellectual Property of a Party which was in existence prior to the commencement of this Agreement or which was subsequently developed by that Party independently of, and for purposes unconnected with, this Agreement.

“Business Day” means a day other than Saturday, Sunday, or public holiday in South Australia.

“Change Request” means a written request of either Party varying the Services in the SOW.

“Confidential Information” means any information marked as confidential by the Party disclosing the information or are developed by a Party in connection with this Agreement, which is not publicly available (or is publicly available only because of a breach of confidentiality obligations by the Party who received the information) including:

(a) information marked as confidential by the Party disclosing it;

(b) information which a reasonable person receiving would infer as being confidential, considering the nature of the information;

(d) information regarding the disclosing Party’s agreements or other dealings with third parties, including customer lists and supplier lists;

(e) personal information regarding the disclosing Party’s directors, other officers, employees, agents, contractors, and representatives; and

(f) data, designs, documentation, drawings, schematics, source or object code, specifications, and workings of the disclosing Party’s products or services.

“Force Majeure Event” means an event adversely impacting a Party’s ability to comply with any of its obligations under this Agreement which is beyond the Party’s reasonable control, such as fire, flood, natural or man-made disasters, civil commotion, industrial action, war (declared or undeclared), pandemic, and restrictions and prohibitions or any other actions by any government or quasi-government authorities.

“General Terms and Conditions” means the provisions in this Agreement excluding the Annexures.

“GST Law” means the same as in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).

“Intellectual Property” means all present and future rights conferred by statute, common law, or equity in or in relation to any copyright, trademarks, designs, patents, circuit layouts, business and domain names, confidential information, and other results of intellectual activity in the industrial, commercial, scientific, literary, or artistic fields existing anywhere in the world, whether or not registered or capable of registration, and any goodwill associated with such activity and any applications, renewals, and extensions of such rights.

“SOW” means the schedule of work or proposal document specifying the scope, fees, and other particulars of the Services to be provided to you.

“Party” means a party to this Agreement.

“PPSA” and “PPSR” shall mean the Personal Property Securities Act 2009 (Cth) and the Personal Properties Securities Register under the PPSA, respectively.

“Service IP” means the Intellectual Property created by us for your use under this Agreement and delivered to you.

“Services” means our products and services specified in an SOW.

“Term” means the period from the commencement of this Agreement to its expiry or termination, in accordance with clause 2.3.

1.2 In the interpretation of this Agreement, unless context indicates otherwise:

(a) References to legislation or provisions of legislation include changes or re-enactments of the legislation, and statutory instruments and regulations made under the legislation;

(b) Words denoting the singular include the plural and vice versa, words denoting individuals or persons include bodies corporate and vice versa, words denoting one gender include all genders, and references to documents or agreements also mean those documents or agreements as changed, novated, or replaced;

(d) Parties must perform their obligations on the dates and times fixed by reference to Adelaide in South Australia;

(e) Reference to an amount of money is a reference to the amount in the lawful currency of the Commonwealth of Australia;

(f) If the day on or by which anything is to be done is a Saturday, a Sunday or a public holiday in the place in which it is to be done, then it must be done on the next Business Day;

(g) References to a Party are intended to bind their heirs, executors, administrators, successors, and assigns;

(h) Obligations under this Agreement affecting more than one Party bind them jointly and each of them severally;

(i) Clause numbers refer to clauses in this Agreement;

(j) Headings are for convenience only and do not affect the interpretation of this Agreement;

(k) The words “including” and “such as” are not words of limitation; and

(l) No rule of construction applies to the disadvantage of a Party because that Party was responsible for the preparation of this Agreement or any part of it.

2 Engagement and Services

2.1 We will provide the Services to you in consideration for you paying the Fees to us, in accordance with this Agreement.

2.2 The Services will be performed by our employees or subcontractors that we may choose as the most appropriate to carry out the work associated with the Services.

2.3 Term of this Agreement

This Agreement will:

(a) Commence on the date specified in the relevant SOW or if a commencement date is not specified in the SOW, then on the date you indicate acceptance of this Agreement by providing us with instructions to proceed or making any payment to us pursuant to the SOW; and

(b) Continue until the deliverables set out in the SOW are delivered, or this Agreement is terminated earlier in accordance with clause 10.

2.4 Change requests

Either Party may at any time make a request (“Change Request”) in writing to the other Party to change the SOW or any other provision of this Agreement.

(a) A Change Request must include:

(i) a description of the requested change and an assessment of its impact upon all aspects of the existing Services;

(ii) any change to the Fees;

(iii) any change to the timing of delivery and other milestone; and

(iv) plan and schedule for implementing the changes proposed.

(b) Upon receiving a Change Request, the receiving Party shall have up to 5 Business Days in which to:

(i) accept or reject the Change Request (giving written reasons for such rejection); or

(ii) enter into negotiations with the requesting Party regarding the change.

(c) Each Party shall use its best endeavours and negotiate in good faith to reach an agreement regarding any Change Request.

(d) The changes set out in the Change Request and mutually agreed by the Parties shall be recorded as “Amendment to Schedule of Work” and signed by the Parties.

3 Fees

3.1 Payment of Fees

(a) In consideration of the provision of the Services, you must pay us the Fees in accordance with this Agreement and the relevant SOW.

(b) Where our Fees are based on an hourly rate, any time spent which is less than an hour is charged on a pro-rated basis.

(c) You acknowledge that the Fees are exclusive of any GST that may apply to the supply of product and services, and therefore, we will be entitled to add any applicable GST to the Fees.

3.2 Invoicing

(a) We will provide you with tax invoices from time to time, in accordance with the GST Law.

(b) You must pay each tax invoice within 30 days of the date of the tax invoice.

3.3 Variation of Fees

We are entitled to reasonably vary our rates during the term of this Agreement with written notice to you at least 30 days prior to the change being implemented.

3.4 Costs and disbursements

We are permitted to charge for all costs and expenses incurred in performing the Services, including travelling, photocopying, courier services, postage, and other disbursements to third-parties.

3.5 Failure to pay

If you do not make a payment by the date stated in an invoice or as otherwise provided for in the agreement, we are entitled to do any or all of the following:

(a) charge interest on the outstanding amount at the rate that is 5% above the cash rate published by the Reserve Bank of Australia (expressed as an annual rate), accruing daily;

(b) require you to pay, in advance, for any Services (or any part of the Services) which have not yet been performed;

(d) terminate this Agreement in accordance with the termination provisions in this Agreement.

3.6 Disputed invoices

(a) If you dispute the whole or any portion of the amount claimed in an invoice submitted by us, you must:

(b) pay the portion of the amount stated in the invoice which is not in dispute in accordance with the terms of payment set out in this agreement; and

(c) notify us in writing (within 7 days of receipt of the invoice) of the reasons for disputing the remainder of the invoice.

4 Your obligations

4.1 During the term of this Agreement, you will cooperate with us and assist us as we reasonably require from time to time.

4.2 You will not charge for us for our use of the information and documentation made available by you or your effort, time, and costs of providing assistance and cooperation to us.

4.3 You will pay to us any additional costs and expenses which are reasonably incurred by us due to any failure by you to cooperate with us or provide us with assistance, information, and documentation that we reasonably require to perform the Services. You will hold us harmless in relation to any delays in our performance of the Services caused by your failure.

4.4 The specification of our requirements in any SOW is solely your responsibility. You release us from any liability arising from any Services we provide to you where we have relied upon your specifications set out in the SOW and any other instructions that you provide to us.

5 No partnership or employment relationship

5.1 Nothing in this agreement constitutes the relationship of employer and employee, partnership, or joint venture, between the Parties.

5.2 It is the express intention of the Parties that any such relationships are denied.

6 Ownership of intellectual property

6.1 The Parties agree that other than as expressly provided, nothing in this Agreement transfers or grants to a Party any title, licence, or other rights or interests in relation to any Background IP belonging to the other Party.

6.2 You acknowledge that ownership of the Service IP remains vested in us. Subject to full payment of our Fees and your compliance with all your obligations under this Agreement, we grant to you an exclusive, royalty-free, transferable, worldwide licence to use the Service IP for the sole purpose of enabling you to derive full benefit from the Services. For avoidance of doubt, this licence extends to parts of the Background IP which form the Service IP.

6.3 We agree to indemnify you fully against all liabilities, costs, and expenses that you may incur if the Service IP infringes the rights of a third party, except this indemnification does not apply in relation to any infringement or alleged infringement of the third party’s Intellectual Property arises from:

(a) your supply of material to us that infringes or allegedly infringes a third party’s Intellectual Property rights;

(b) your use of the Service IP in combination with Intellectual Property of a third party that is infringed or allegedly infringed; or

(c) modification or alteration of the Service IP with a third party’s Intellectual Property without our prior written consent.

6.4 You agree to indemnify us fully against all liabilities, costs, and expenses that we may incur if:

(a) any material that you supply to us infringes or allegedly infringes the rights of a third party;

(b) you use the Service IP in combination with Intellectual Property of a third party that is infringed or allegedly infringed; or

7 Confidentiality

7.1 A Party which receives Confidential Information (“Recipient”) from the other Party (“Discloser”) must keep the Discloser’s Confidential Information confidential and not deal with it in any way that might prejudice its confidentiality.

7.2 The Recipient’s obligations in relation to the Confidential Information will continue for as long as the Confidential Information is maintained on a confidential basis by the Discloser.

7.3 At the Termination Date, or when earlier directed by the Discloser:

(a) all Confidential Information must be returned to the Discloser, including all copies of the Confidential Information or any extracts or summaries of the Confidential Information that the Recipient makes and any software that the Recipient creates based on the Confidential Information; and

(b) the Recipient must erase and destroy any copies of any software containing or comprising the Confidential Information in the Recipient’s possession or under the Recipient’s control or that may have been loaded onto a computer possessed or controlled by the Recipient.

7.4 The Recipient agrees that the Discloser may require any of the Recipient’s personnel to sign a confidentiality agreement in a form that the Discloser approves, as a condition of the Discloser’s acceptance of any of the Recipient’s personnel.

7.5 The Recipient agrees to indemnify the Discloser fully against all liabilities, costs, and expenses which the Discloser may incur because of any breach of this clause by the Recipient.

7.6 The Recipient acknowledges that damages may be an inadequate remedy for breach of this clause and that the Discloser may obtain injunctive relief against the Recipient for any breach of this clause.

7.7 The obligations accepted by the Recipient under this clause will survive termination or expiry of this Agreement.

8 Non-solicitation

8.1 During the Term of this Agreement and for a period of 1 year following its expiry or termination, you must not solicit or entice away any of our employees, contractors, subcontractors, directors, or officers to cease or reduce their employment or contracting relationship with us or be employed or contracted by you or any of your Associated Entities.

8.2 You must also not attempt, or assist a third-party, to breach the prohibition set out in clause 8.1 above.

8.3 If you breach clause 8.1 or 8.2, you must pay us the Solicitation Fee within 14 days of being notified by Hastwell.

(a) “Solicitation Fee” means the following amounts:

(i) 36% of the person’s or organisation’s total annual cost to Hastwell including (but not limited to), salary, superannuation, workcover, benefits and contractor fees.

(ii) Calculated as at the date of Hastwell becoming aware of the breach, reflecting the previous 12 months, or if less than 12 months, pro-rata applied to equal a full year.

(b) The Solicitation Fee is not a penalty, but a charge reflecting a reasonable pre-estimate of our loss and incurred cost caused by the solicitation and therefore breach of this Agreement.

(c) For avoidance of doubt, the Solicitation Fee does not release you from liability to pay our Fees for the Services rendered prior to the date of termination of this Agreement (including any disbursements incurred up to that date). Additionally, the Early Termination Fee may apply if an Early Termination results. If any Fees are outstanding at the date of termination, you must pay such Fees to us in accordance with clause 10.4.

(d) You may request an alternate fee or commercial agreement to the Solicitation Fee, to be decided at Hastwell’s sole discretion. If the alternate fee or commercial agreement is not agreed within 5 days, or is agreed but not delivered within the agreed timeframe, the entire Solicitation Fee is due and payable within 14 days of being notified by Hastwell. Any portion of the alternate fee or commercial agreement that you have provided as at that time will be forfeited or a credit applied at Hastwell’s sole discretion.

9 Representations, liability, and indemnities

9.1 Compliance with laws

We warrant that our supply of the Services shall comply with all Australian laws relevant to the supply of such Services, and you warrant that you will only use the Services for lawful purposes and not any unlawful purpose.

9.2 Limitation on liability

(a) Except in the case of death or personal injury caused by our gross negligence or misconduct, our liability under or in connection with this Agreement must not exceed the Fees paid by you to us under this Agreement.

(b) Neither Party is liable to the other Party for any indirect damage or consequential loss including any loss of profits, opportunity, business, or goodwill. For the purposes of this subclause, “consequential loss” means any damage or loss that does not arise naturally and according to the usual course of things as a result of a breach of this Agreement, whether or not such damage or loss may reasonably be supposed to have been in the contemplation of the Parties at the time they made this Agreement.

(c) The clauses 9.2(a) and 9.2(b) do not apply in relation to damage or loss arising from the breach of an obligation under clauses 6 (intellectual property), 7 (confidentiality), and 9.1 (compliance with laws). However, to the fullest extent permitted by law, our liability for claims under any circumstances and heads of damage, must not exceed $10 million.

9.3 No reliance

Each of the Parties acknowledges that, in entering into this Agreement, they do not rely on any representation, warranty, or other provision except as expressly provided in this Agreement. Any conditions, warranties, or other terms implied by statute or common law are excluded from this Agreement to the fullest extent permitted by law.

9.4 Provisions not to exclude Australian Consumer Law

To the extent that the Australian Consumer Law applies to the supply of Services under this Agreement, nothing in this Agreement is intended to exclude or waive a Party’s obligation or right under the Australian Consumer Law.

9.5 Survival of obligations

The rights and obligations under this clause 8 will survive termination or expiry of this Agreement.

10 Termination

10.1 Termination for breach with notice

Either Party may terminate this Agreement by notice in writing to the other if the other Party:

(a) fails to observe any term of this Agreement; and

(b) fails to rectify this breach, to the satisfaction of the notifying Party, following the expiration of 20 Business Days’ notice of the breach being given in writing by the notifying Party to the other Party.

10.2 Termination for material breach or insolvency

Either Party may terminate this Agreement immediately upon the happening of any of the following events:

(a) if the other Party commits a material breach of the agreement which is incapable of rectification;

(b) if you enter into a deed of arrangement or an order is made for it to be wound up;

(c) if an administrator, receiver, receiver and manager, or a liquidator is appointed over all or any part of your assets pursuant to the Corporations Act; or

(d) if you would be presumed to be insolvent by a court in any of the circumstances referred to in the Corporations Act.

10.3 Early termination of fixed-term contract

(a) If the work specified in the SOW is for a fixed or minimum duration (Minimum Commitment):

(i) and you terminate this Agreement (other than pursuant clauses 10.1 or 10.2); or

(ii) we terminate this Agreement pursuant to clauses 10.1 or 10.2;

before the Minimum Commitment expires, you must pay to us the Early Termination Fee.

(b) “Early Termination Fee” means the following amounts:

(i) Fees that would have been payable by you for the remainder of the Minimum Commitment; and

(ii) third-party disbursements (such as fees to wholesale vendors) set out in the SOW.

(c) The Early Termination Fee is not a penalty, but a charge reflecting a reasonable pre-estimate of our loss caused by the early termination or breach of this Agreement.

(d) For avoidance of doubt, the Early Termination Fee does not release you from liability to pay our Fees for the Services rendered prior to the date of termination of this Agreement (including any disbursements incurred up to that date). If any Fees are outstanding at the date of termination, you must pay such Fees to us in accordance with clause 10.4.

10.4 Outstanding amounts due

Within 10 Business Days of the Termination Date, you must pay all fees, expenses, or reimbursements payable by you in respect of any period prior to the Termination Date.

11 Entire agreement

This Agreement is the entire agreement and understanding between the Parties on everything connected with the subject matter of this Agreement, and supersedes any prior understanding, arrangement, representation, or agreements between the Parties as to the subject matter contained in this Agreement.

12 Variation

An amendment or variation to this Agreement is not effective unless the procedure at clause 2.4 is followed, or otherwise the variation is set out in writing and signed by all the Parties.

13 Dispute resolution

13.1 Parties to follow dispute resolution procedure

If a dispute arises between the Parties, the complainant must not commence any court or arbitration proceedings, except where that Party seeks urgent interlocutory relief, unless it has first complied with the procedure in this clause.

13.2 Notification

The complainant must inform the respondent in writing of the following:

(a) The nature of the dispute;

(b) The outcome the complainant desires, and

13.3 Endeavour to resolve dispute

On receipt of the complaint by the respondent, both Parties will make every effort to resolve the dispute by mutual negotiation within 10 Business Days.

13.4 Mediation

Any unresolved dispute or difference whatsoever arising out of or in connection with this Agreement shall be referred for mediation to the Australian Disputes Centre (“ADC”), under the ADC Guidelines for Commercial Mediation. The terms of the Guidelines are taken to be incorporated into this Agreement.

13.5 Survival of this clause

This clause survives termination of this Agreement.

14 Force majeure

14.1 If a Party is unable to perform an obligation under this Agreement because of a Force Majeure Event, then that Party:

(a) must notify the other Party of this fact and to what extent their ability to perform their obligations under this Agreement is effected;

(b) if they have issued a notice pursuant to subclause 14.1(a) above, is temporarily relieved from performing the obligations specified in their notice for the duration of the delay arising directly out of the Force Majeure Event; and

14.2 Neither Party is excused from any obligation to pay money because of a Force Majeure Event, despite any other provision of this Agreement.

14.3 If a delay by either Party arising directly out of a Force Majeure Event continues for more than 6 months, the other Party may, at its sole discretion, terminate this Agreement giving 20 Business Days’ written notice to the other Party.

15 Notices

A notice or other communication to a Party must be in writing and delivered to that Party or that Party’s legal practitioner in one of the following ways:

(a) Delivered personally;

(b) Posted to their address by pre-paid post, when it will be treated as having been received on the second Business Day after posting;

(c) Sent by email to their email address, when it will be treated as having been received on the same day if it was sent before 5pm on a Business Day, or if not, the next Business Day; or

(d) Sent by facsimile to their facsimile number, when it will be treated as having been received when the sender obtains a report of successful transmission on their facsimile machine.

16 Assignment, novation, and other dealings

16.1 You must not assign or novate this Agreement or purport to do so without our prior written consent, which may not be unreasonably withheld.

16.2 You agree that it is reasonable for us to withheld consent for any proposed assignment or novation of this Agreement by you, if:

(a) We are not satisfied with the ability of the proposed assignee to perform your obligations under this Agreement;

(b) The proposed assignee is our competitor in respect of the whole or any part of our business; or

17 Waiver

Any waiver by any Party to a breach of this Agreement shall not be deemed to be a waiver of a subsequent breach of the same or of a different kind.

18 Survival

All provisions in this Agreement that need to survive the termination of this Agreement in order to be effective, shall survive the termination or expiry of this Agreement.

19 Severance

If any provision in this Agreement is unenforceable, illegal, or void, that provision is severed, and the remaining provisions shall remain in force.

20 Governing law and jurisdiction

This Agreement is governed by the laws of South Australia and the parties submit to the exclusive jurisdiction of the courts operating in South Australia, and all courts that may hear appeals from those courts.

ANNEXURE A

MANAGED SERVICES

TERMS AND CONDITIONS

This Annexure A applies if the Services includes managed services of information systems.

If there is any inconsistency between this Annexure and the General Terms and Conditions, the provisions in this Annexure will take precedence to the extent of the inconsistency but all other provisions in the General Terms and Conditions will continue to apply.

The defined terms and interpretative rules in the General Terms and Conditions also apply to this Annexure.

1 Delivery of Services

1.1 The method of delivering the Services will be determined at our sole discretion, subject to your requirements specified in the SOW, and may be delivered via telephone, remotely, or by onsite attendance. We must act reasonably in exercising such discretion.

1.2 We must provide and carry out the Services in an efficient and professional manner and in accordance with standards generally observed in the managed IT services industry.

2 Assistance

2.1 You must:

(a) provide all reasonable assistance requested by us in the diagnosis of any problem within your file and network servers, end-user devices, third-party cloud services, other infrastructure;

(b) follow our reasonable directions in the course of our diagnostic, repair, maintenance, and other work;

(c) make available free of charge and within a reasonable time, all information, documents, facilities, and services reasonably required to enable us to provide the Services; and

(d) provide access to your premises on days and times we reasonably request.

2.2 You will indemnify and hold us harmless for any costs, expenses, damage, and loss arising from your lack of compliance with clause 2.1 in this Annexure, if the lack of compliance prevents or delays our performance of the Services. This may include, but are not limited to, our costs and expenses of paying for our employees or subcontractor to be available at certain dates and times to carry out the Services.

3 Interruptions

3.1 We will use reasonable endeavours to supply the Services without warranting that supply will be free from any errors or interruptions, subject to any service level guarantees specified in the SOW.

3.2 Despite anything else within the Agreement, you acknowledge and accept that the Services may not be available in all circumstances.

4 Issues with equipment

4.1 We will notify you of any serious, potential, or any other issue that has a real possibility of adversely affecting the Services, relating to the age, configuration, or implementation of any equipment or software that we are required to support as part of the Services.

4.2 Where, in our opinion, that equipment or software requires additional support or support beyond the scope of the work in the SOW, due to its age, configuration, or implementation, we reserve the right in our sole discretion to cease support of that item of equipment or software under this Agreement until the equipment or software is brought up to modern standards.

4.3 For avoidance of any doubt, you acknowledge and agree that we are unable to support any equipment or software which are no longer supported by the original manufacturer or developer.

5 Out of Scope

5.1 No services other than the Services are covered by this Agreement.

5.2 Any services other than the Services that are provided by the Company will be charged in accordance with:

(a) the time and materials “Out of Scope” hourly rate included in the SOW; or

(b) if an “Out of Scope” rate is not included in the SOW but professional fees are specified on hourly, daily, or other periodic rates, then professional fees at such rates on a pro-rated basis, plus the actual cost of any materials.

5.3 The Services that are Out of Scope include but are not limited to:

(a) travel time to and from and support of equipment at remote locations, such as staff homes, not listed in the SOW;

(b) installation of new or additional devices or provision of service which is not specifically mentioned in the SOW; and

ANNEXURE B

STAFF AUGMENTATION

TERMS AND CONDITIONS

This Annexure B applies if the Services includes staff augmentation.

The defined terms and interpretative rules in the General Terms and Conditions also apply to this Annexure.

1 Staff augmentation

1.1 We agree, at your request and pursuant to your requirements set out in the relevant SOW, to provide our qualified employees or subcontractors (“Personnel”) to you in order to augment your existing workforce.

1.2 The Personnel shall be our employees or subcontractors, and we will make reasonable endeavours to ensure that such Personnel has the appropriate level of experience, qualifications, skills, and attributes for the work that they are undertake for you.

1.3 Prior to providing any Personnel, you must provide us:

(a) As part of the SOW, detailed information on the desired and required experience, qualifications, skills, and any other requirements for the Personnel;

(b) Details of the work that you need the Personnel to perform during the period of their placement with you, including project specifications, project milestones, tasks, duties, and responsibilities of the Personnel; and

2 Changes

2.1 You acknowledge and agree that we may be lawfully required to review and increase the remuneration for the Personnel due to changes to employment laws, superannuation laws, and the terms and conditions of any applicable Modern Award or other industrial instrument. In such circumstances, you agree that:

(a) It is fair and reasonable for us to increase our Fees to you for the provision of the Personnel, in line with any require increase to the Personnel’s remuneration; and

(b) We are entitled to charge you, and you must pay, such consequential increase to our Fees from the time when the remuneration must be increased by law, Modern Award, or other industrial instrument.

2.2 You must not require the Personnel to work outside of the days and hours set out in the SOW without our prior written consent.

(a) If you require the Personnel to attend to you outside of such days and hours, you must notify us of such a requirement at least 5 Business Days in advance, and you will be required to pay us any Fees associated with such attendance.

(b) You acknowledge that we reserve the right to assign substitute Personnel with the appropriate experience, knowledge, and skills at our sole discretion.

2.3 You must not require the Personnel to perform any tasks or duties, or take on responsibilities, outside of the scope set out in the SOW without our prior written consent.

(a) If you require any changes to the tasks, duties, and responsibilities of the Personnel or have them undertake any work beyond the scope set out in the SOW, you must first inform us of this requirement, and any such changes must be mutually agreed by the Parties.

(b) You acknowledge that the same Personnel may not be able to perform tasks or duties, or take on responsibilities that differ from the original particulars in the SOW. In such a case, we may assign a different Personnel to provide Services to you, in consultation with you.

3 Solicitation

3.1 In the event that you directly employ or contract with the Personnel:

(a) You must pay us fees totalling the following:

(i) if the provision of the Personnel under the SOW was for a fixed or minimum period:

the total Fees that would have been payable from the commencement of your direct employment or contracting of the Personnel or the end of their employment or contracting relationship with us (whichever occurs earlier), to the end of the fixed or minimum period under the SOW;

plus

(ii) the Personnel’s hourly or daily rate, pro-rated to a full-time basis for 6 months;

(b) You agree that the amount set out in clause 3.1(a) of this Annexure is a reasonable pre-estimate of our loss arising from your direct employment or contracting of the Personnel.

4 Liability

4.1 You acknowledge and agree that you must provide a safe workplace under workplace health and safety laws, and in this regard you:

(a) Warrant that you have established workplace health and safety policies based on sound risk assessment, including but not limited to policies covering bullying, harassment, management of workplace injury, and any other risks relevant to the workplace; and

(b) Fully indemnify us – to the fullest extent permitted by law – for all claims for compensation or damage or loss of any kind (including those caused by physical or psychological injury, death, bullying, and harassment) by the Personnel, or the Personnel’s dependents, family members, enduring attorneys, enduring guardians, financial managers, or legal personal representatives, arising directly or indirectly from their work with you.

4.2 You are solely responsible for the appropriate direction and supervision of the Personnel while the Personnel is performing work for you. In this regard:

(a) You fully release us of any liability and indemnify us against all damage and loss, arising from the Personnel’s negligence, recklessness, misrepresentation, deceptive conduct, breach of professional standards, breach of any condition of a licence or registration, voidance or compromise of insurance coverage, underperformance, breach of intellectual property rights of any person or entity, breach of confidentiality obligation related to the confidential information of any person or entity, or breach of any non-competition or non-solicitation restraints; and

(b) The releases and indemnities set out in clause 4.2(a) of this Annexure do not apply if such beaches are caused by the Personnel carrying out our express direction.

4.3 While we will use reasonable endeavours to verify the experience, qualifications, skills, and attributes of the Personnel, you acknowledge that we are not responsible for any inaccuracies in their experience, qualifications, skills, or attributes. You are solely responsible for determining whether the Personnel is suitable for the duties, tasks, and responsibilities that you intend for the Personnel.

5 Performance

If you are not satisfied with the Personnel for any reason, you must notify us and the Personnel of this fact within 24 hours of the cause of the dissatisfaction arising. In such a case:

(a) The Parties must attempt to resolve the matter by confidential negotiation held in good faith; and

(b) If the matter cannot be resolved within a reasonable time:

(i) we may substitute the Personnel with another Personnel meeting your requirements for experience, qualifications, skills, and other attributes under the SOW, subject to your approval of the substitute Personnel; or

(ii) the Parties may terminate this Agreement (if it is only for staff augmentation), or the part of the Agreement relating to staff augmentation.

(c) In case of a termination under clause 5(b)(ii) of this Annexure, the Parties shall hold each other harmless in respect of any damage or loss suffered because of the termination or the Personnel not being deemed satisfactory by you.

6 Termination

6.1 Either Party may terminate the staff augmentation Service for convenience by giving the other the notice period set out in the SOW, or if there is no express notice period, then at least 4 weeks’ written notice of termination.

6.2 If you terminate the staff augmentation Service pursuant to clause 6.1 of this Annexure without giving the requisite notice, and it is not a termination under clause 5(b)(ii) of this Annexure, you must pay the Fees for the required notice period.

ANNEXURE C

PROCUREMENT

TERMS AND CONDITIONS

This Annexure C applies if the Services includes procurement of hardware or software (“Product”).

The defined terms and interpretative rules in the General Terms and Conditions also apply to this Annexure.

1 Procurement

1.1 We have requested us to procure on your behalf hardware or software products in accordance with the requirements set out in the SOW or a separate purchase order (collectively “Purchase Order”).

1.2 Our supply of the Products to you are governed by the terms and conditions in this Annexure and any additional provisions in the Purchase Order.

1.3 In this Annexure the word “Vendor” means the original manufacturer, developer, or distributor of the Product.

2 Delivery of Product

2.1 Whilst we make reasonable efforts to ensure that Products are delivered you within the timeframe requested by you, or otherwise within a reasonable time, you acknowledge and agree that delivery times are:

(a) Dictated by the third-party vendor (or in the case of physical delivery, the third-party freight and logistics provider); and

(b) Estimates only and we are not liable for any delays.

2.2 If you fail or refuse to take delivery of a Product for reasons other than that they do not conform to your stated specifications in the SOW, then you will be liable for all loss and damage suffered by us as a result of your non-acceptance, including our Fees, third-party disbursements, and any ongoing subscription fee or cancellation fees charged by the vendor of the Product.

2.3 If a Product cannot be delivered because you are not available at your nominated place of delivery or the delivery service provider is unable to access the location, then you acknowledge and agree:

(a) That the Product may be stored for collection at the delivery service provider’s depot or other collection facility, in which case you are solely responsible for collecting the Product including payment of any fees related to the storage and collection; and

(b) That if you authorise the delivery service provider to leave the Product at a specified location, you release and hold harmless both us and the delivery service provider from any damage to, destruction of, or loss of, the Product arising from it being left at the specified location.

3 Payment

You must pay us the price for the Product without any deduction in respect of any claimed set-off or counterclaim (including any such set-off or counterclaim on account of any delay on our part in delivering any Product) in accordance with this Agreement.

4 Title

4.1 The risk to the Products will pass to you at the point and time of delivery.

4.2 Delivery will be deemed to have occurred at the earliest of:

(a) When a physical Product arrives at your nominated place of delivery and is left at a place specified by you;

(b) When a physical Product is handed to one of you at your nominated place of delivery;

(d) You downloading a software Product to your systems; or

(e) Access to a software Product being granted to you at the relevant level for the type of licence you purchased.

4.3 For avoidance of doubt, handing or collection of a Product by you includes handing to or collection by a purported director, officer, employee, contractor, or agent of yours.

4.4 Notwithstanding delivery and passing of risk:

(a) All Products remain our property until all monies owing to us have been paid in full;

(b) You acknowledge that our sale of Products to you before receiving full payment of the purchase price, constitutes the granting of a security interest by you in our favour under the PPSA in relation to those Products. In this regard:

(i) we reserve the right (but are not obliged) to register our security interest on the PPSR;

(ii) you waive any right to receive notification under the PPSA including any right to receive a verification statement;

(iii) you hold the Products as bailee in our favour and must return the Products to us on demand;

(iv) until we receive payment for the Product in full, we will be entitled to enter your premises (or any receiver and manager, administrator, liquidator, or trustee in bankruptcy appointed over you or your assets) at any reasonable time to:

(a) inspect all records in relation to the Products and all records in respect of any on-sale of such Products; or

(b) take possession of the Products, but if it is not possible to identify the ownership of the Products in your possession, the Products will be treated as though they were sold by you in the same sequence as when you took delivery of the Products; and

(v) if the quantity or value of the Products that are eligible to be repossessed by us exceed the value of the monies owing to us, we reserve the right to determine which the Products will be repossessed by us;

(c) You must insure the Products against any damage or loss for their full value until full payment of the purchase price has been made; and

(d) If a Product require a subscription or licence to use, we are entitled to cancel or arrange to cancel any subscription or licence, and to revoke access, to any Product for which the purchase price remains outstanding.

5 Cancellation of Purchase Order

5.1 You acknowledge and agree that if you cancel a Purchase Order, it may not be possible to us to provide you with a refund of the purchase price (in part or in full) due to restrictions on cancellations and refunds set by the relevant Vendor.

5.2 If it is possible to provide you with a full or partial refund, we shall refund you within a reasonable time to the extent it is possible to do so, less our administrative costs and third-party expenses, which may be set out in the Purchase Order.

6 Errors and Omissions

You acknowledge and agree that:

(a) prices, promotions, versions, and availability of advertised products are subject to change by the relevant Vendor without prior notice;

(b) all images are for illustrative purposes only and the appearance of the actual product may differ; and

(c) all information displayed on our website or catalogue are based on information from the Vendors of the products shown, obtained and published in good faith, and that we give no warranties or make representations about the accuracy and currency of the information shown.

7 Licences

7.1 You acknowledge and agree that your use of any software Product is subject to the terms of an end-user licence or other similar licence granted by the developer or vendor of the Product (“EULA”).

7.2 You agree to execute and be bound by the terms of the EULA and to fully indemnify us against any claim for damage or loss arising from your breach of the EULA.

8 Warranties

8.1 Subject to any consumer guarantees under the Australian Consumer Law that might apply to a particular Product, we do not provide any warranty or guarantee in relation to the Products you purchase from us.

8.2 If a manufacturer, developer, or vendor provides their own warranty regarding a Product, we will provide you with a copy of the warranty documentation with the Product. The provision of any remedies under a warranty is subject to your compliance with the requirements for claiming a warranty under the Vendor’s warranty document.

8.3 We do not provide any warranty or representation regarding the quality or suitability of a Product for your business, information or communication system, or any use case, unless:

(a) you have specified your requirements for the Product in detail in the Purchase Order; and

(b) we have provided you with express advice about the quality and suitability of the Product considering your specified requirements;

in which case we may provide you with repair, replacement, or refund of the purchase price, at our sole discretion and subject to any requirements for such remedies set by the Vendor, on condition that:

(d) any alleged defect or lack of suitability is confirmed by our personnel checking the Product, and for this purpose, you must provide us with access to the Product during your business hours upon our request.

8.4 Nothing in this Agreement is designed to exclude or vary your rights as a consumer under the Australia Consumer Law, particularly in relation to statutory consumer guarantees against unacceptable quality and lack of fitness for purpose, if your purchase of a Product is for less than $100,000 (or some such other statutory amount set under the Australian Consumer Law).

ANNEXURE D

PROFESSIONAL CONSULTING AND PROJECTS

TERMS AND CONDITIONS

This Annexure D applies if the Services includes professional consulting or projects.

The defined terms and interpretative rules in the General Terms and Conditions also apply to this Annexure.

1 Specifications

1.1 The SOW for any project work shall include, where applicable:

(a) Requirements as to documentations that needs to be authored;

(b) Existing configuration of any hardware or software relevant to the project;

(d) Financial, material, and time constraints;

(e) Any stakeholders within your organisation and any third-party stakeholders (such as vendors);

(f) Significant milestones;

(g) Testing and quality assurance requirements;

(h) Assumptions relied upon in scoping and quoting the project;

(i) Your contact person who will be responsible for being the primary liaison for the project;

(j) Workplace health, safety, and security matters of which we should be aware;

(k) Significant risks related to the project, including but not limited to security, delay, availability of staff and material, and disputes;

(l) Payment schedule;

(m) Terms of any warranty we provide for the project deliverables; and

(n) Any other information that is material to the determination of the scope and Fees for the project.

1.2 You are solely responsible for ensuring that any specifications that relate to your business, your information systems, and your requirements for the deliverables in the project are accurate and complete. We are not responsible for any delay or failure of delivery caused wholly or partly by any inaccuracy or incompleteness of your specifications.

2 Acceptance Testing

2.1 This clause applies if the Services include a project involving development of any hardware or software, or any data or systems integration.

2.2 The SOW may include a schedule of quality assurance and testing activities including your acceptance testing of the project deliverables.

2.3 You warrant that you will cooperate fully and act reasonably to assist us in ensure timely progress of the project.

2.4 You agree that it may be necessary to change the SOW if either Party encounters factors that adversely affect the progress or completion of the project, which could not reasonably have been foreseen when the SOW was originally created.

2.5 At the conclusion of the project, we will issue a certificate of completion of the project.

2.6 Upon the issuing of a certificate of completion, you may conduct any reasonable acceptance tests to confirm that the project deliverables are compliant with your stated requirements.

(a) In conducting these tests, you must comply with our instructions regarding the proper operation of the project deliverables and must not subject the project deliverables to any use cases for which it was not intended pursuant to the SOW.

(b) The acceptance testing must not exceed 20 Business Days after the certificate of completion was issued or such other period as specified in the SOW (“Test Period”).

2.7 If, during the Test Period:

(a) you do not notify us in writing of any defects in the project deliverables; or

(b) you notified us in writing about defects in the project deliverables, but the alleged defects were reasonably determined by us not to be defects and any actual defects were rectified;

the project deliverables will be deemed to have passed acceptance testing and be deemed to have been accepted by you as being of acceptable quality and fit for purpose in line with your requirements in the SOW.

3 Cybersecurity services

3.1 This clause applies if the Services include any cybersecurity assessment or management services.

3.2 The SOW for cybersecurity assessments involving penetration testing must specify:

(a) the rules of engagement including:

(i) any devices, directories, internet protocol addresses, and other assets that must not be the subjected to scanning or attack;

(ii) types of testing activities that may or may not be carried out;

(iii) the days and hours during which a test may be carried out; and

(b) a person or team in your organisation to be the primary contact point for us to obtain any instructions regarding a situation that might arise during a test.

3.3 Due to the nature of cybersecurity assessment services, you acknowledge that your systems may suffer temporary degradation of performance or interruption to its availability. You will release us and hold us harmless for any damage or loss you may suffer as a result of such degradation or interruption, provided that we act within the rules of engagement (or where the rules are ambiguous, in accordance with your instructions) at all relevant times.

3.4 After the cybersecurity assessment services, we shall provide you with a written report of our findings. You acknowledge and agree that:

(a) Such a report does not constitute a guarantee or warranty by us or any assurance against cybersecurity risks;

(b) The report, or any part of the report, must not be:

(i) quoted in any regulatory document such as an annual report or audit report; or

(ii) disclosed to any third-party unless you are compelled to do so by force of law, in which case you must only disclose the report to the minimum extent required to comply with your legal obligations;

(c) We retain the Intellectual Property rights over all of the contents of the report, other than any parts which are your Background IP, but you are licence to use, distribute, and make copies of the report solely for your internal use;

(d) All business operational decisions you make as a result of the report’s findings shall remain entirely your own discretion;

(e) The cybersecurity assessment cannot account for all ways in which an external or internal threat actor may cause a security breach of your systems; and

(f) We provide no guarantee or warranty that the cybersecurity services will prevent your systems from being affected by any security breach including but not limited to breach of confidence, modification or deletion of any data in your systems, or disruption to the accessibility of your systems, except to the extent that such breaches are directly caused by our gross negligence or misconduct.

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