general supply term

ArneTech General Supply Terms June 2017

1.                CUSTOMER OBLIGATIONS

1.1             By entering into this Agreement, the Customer agrees to enter into, and abide by:

(a)                 the Purchase Order;

(b)                 the Software Terms; and

(c)                 the Services Terms.

1.2             The Customer acknowledges and agrees that the Software Terms and Services Terms may be entered into between ArneTech and the Customer, and/or directly with the Software Supplier and the Customer, depending on the type of engagement.

1.3             To the extent the Software and Services are supplied directly by the Software Supplier, the Customer hereby agrees to enter into the applicable Software Terms and/or Services Terms directly with the Software Supplier.

1.4             The Customer must provide ArneTech, and where applicable, the Software Supplier, reasonable access to its premises and its systems, to the extent necessary for ArneTech and/or the Software Supplier to properly perform the Services.

2.                ARNETECH OBLIGATIONS

2.1             To the extent the Software and Services are supplied by ArneTech, in consideration for the Fees, ArneTech agrees to:

(a)                 licence the Software to the Customer in accordance with the Software Terms; and

(b)                 perform the Services to a good and workmanlike standard, in accordance with the Services Terms.

2.2             To the extent the Software and Services are supplied directly by the Software Supplier, the licence to use the Software and the performance of the Services are dealt with in accordance with the Software Terms and Services Terms as between the Software Supplier and the Customer.

2.3             ArneTech may, in its sole discretion, replace the person performing the Services unless otherwise agreed in writing.

3.                Term

3.1             Subject to the Software Terms and the Services Terms, this Agreement commences on the Commencement Date and unless terminated sooner, will continue for the Initial Term.

3.2             At the end of the Initial Term, unless:

(a)                 terminated by a party in accordance with clause 5; or

(b)                 in the sole opinion of ArneTech, the Customer has breached any term of this Agreement,

this Agreement will continue automatically for Further Terms, on the same terms.

4.                Fees

4.1             The Customer must pay the Fees to ArneTech in accordance with this clause 4.

4.2             If the Fees for a particular Service have not been set out in the Purchase Order, but ArneTech has communicated its standard price list to the Customer, then the fees are as set out in that standard price list.

4.3             Unless otherwise agreed:

(a)                 ArneTech will issue an invoice to the Customer for the Fees;

(i)                   if for Software, in advance, for the Initial Term; and

(ii)                  if for Services, monthly in arrears.

(b)                 the Fees must be paid by the Customer within fourteen (14) days from the date of ArneTech issuing the invoice.

4.4             Any change in the Fees for the Software or the Services will be notified to the Customer in writing at least three (3) months prior to such change taking effect. In the case of a price increase, the Customer will have the right to terminate the agreement before such increase becomes effective.

5.                Termination

5.1             Subject to specific termination rights set out in the Software Terms or the Services Terms, either party may terminate this Agreement:

(a)                 for convenience, upon ninety (90) days' written notice to the other party;

(b)                 upon thirty (30) days' written notice to the other party where the other party materially breached this Agreement and failed to remedy the material breach within 30 days; or

(c)                 immediately if an Insolvency Event occurs.

5.2             The Customer is not entitled to any refund of the Fees if it terminates for convenience in accordance with clause 5.1(a).

5.3             Upon termination, the Customer must immediately cease using the Software.

5.4             Within fourteen (14) days of termination, the Customer must pay all outstanding Fees.

6.                Confidentiality

6.1             The parties must treat all Confidential Information confidential and not use the Confidential Information except as reasonably anticipated by this Agreement.

6.2             Upon termination of this Agreement, the Customer must return all of ArneTech's Confidential Information to ArneTech.

7.                Dispute Resolution

7.1             If a dispute arises in connection with this Agreement, a party to the dispute must give the other party a notice specifying the dispute and requiring its resolution in accordance with this clause 7.

7.2             Within 7 days of a notice of dispute being delivered, senior personnel of each party must meet in good faith to resolve the dispute.

7.3             If the parties are unable to resolve the dispute within 7 days of the meeting in 7.2, a party may refer the dispute to the Institute of Arbitrators and Mediators Australia for the matter to be resolved by mediation in accordance with the Institute of Arbitrators and Mediators Australia's mediation rules.

7.4             This clause 7 does not prevent a party from seeking injunctive, declaratory or other interlocutory relief from a court.

8.                Intellectual Property

8.1             Subject to the Software Terms and the Services Terms, the Customer acknowledges that ArneTech is the owner (or, where applicable, the licensee) of all Intellectual Property Rights in the Software and the Services that may be provided by ArneTech and/or the Software Supplier under this Agreement.

8.2             To the extent that the Services are supplied by ArneTech, and subject to the Services Terms, ArneTech grants to the Customer a non-exclusive licence to use any Intellectual Property Rights arising out of the Services, for the Term, solely for the customer to receive the benefit of the Services and only for the purposes set out in this Agreement.

8.3             The Customer is not permitted to:

(a)                 modify, reverse-engineer, disassemble or decompile the whole or any part of the Software (other than as permitted by non-excludable law), or make a copy of the whole or any part of the Software for any purpose; or

(b)                 make copies of the Software without the prior written approval of ArneTech or the Software Supplier, as the case may be.

9.                Warranties

9.1             Both parties represent and warrant that they have the right to enter into this Agreement.

9.2             ArneTech warrants that to its knowledge the Software does not infringe any copyright of any third party.

9.3             To the maximum extent permitted by law, ArneTech makes no warranties that the Software and Services will be uninterrupted or error-free. Any warranties in relation to the use or performance of the Software or any outcomes that may be anticipated by the Customer and condition or warranty that would otherwise be implied into this Agreement is hereby excluded.

10.             Indemnities

10.1          The Customer agrees to indemnify and at all times hereafter keep ArneTech indemnified against all losses arising out of any suits, actions, proceedings, claims, costs or losses suffered by or against ArneTech arising out of:

(a)                 a negligent, wilful, fraudulent or otherwise wrongful act or omission of the Customer;

(b)                 a breach by the Customer of any Applicable Laws or Regulations;

(c)                 any third party Intellectual Property Rights claims; and

(d)                 any unlawful disclosure, misuse or misappropriation of Confidential Information.

10.2          Subject to clause 10.3 , ArneTech indemnifies the Customer against any liability under any final judgement in proceedings brought by a third party against the Customer, determining that the Customer’s use of the Software in accordance with this Agreement constitutes an infringement of a third party’s copyright.

10.3          ArneTech will only be liable under clause 10.2 if the Customer:

(a)                 notifies ArneTech  as soon as practicable of the infringements or alleged infringement;

(b)                 gives ArneTech the option to conduct the defence of the claim, including negotiations for settlement or compromise before the institution of legal proceedings;

(c)                 makes no admissions as to liability or agrees to any settlement of any claim for infringement without the prior written consent of ArneTech, which consent must not be unreasonably withheld or delayed;

(d)                 provides ArneTech with reasonable assistance in conducting the defence of the claim;

(e)                 permits ArneTech to modify, alter or substitute the Software at ArneTech’s own expense, to render it non-infringing; and

(f)                   authorises ArneTech to procure for the Customer the authority to continue the use and possession of the Software.

10.4          ArneTech will not be liable to indemnify the Customer under paragraph 10.2 if the infringement arises from:

(a)                 modification or alteration of the Software without the prior consent of ArneTech or by a person other than ArneTech;

(b)                 use of the Software otherwise than in accordance with this Agreement; or

(c)                 any transaction entered into by the Customer in breach of this agreement or relating to the Software without ArneTech’s prior written consent.

10.5          The Customer indemnifies ArneTech against any loss, cost, expense or demand, whether direct or indirect, arising out of the claim by a third party alleging infringements of that person’s Intellectual Property Rights if:

(a)                 the claim arises from any event specified in paragraph 10.4;

(b)                 the ability of ArneTech to defend a claim has been prejudiced by the failure of the Customer to comply with its obligations under paragraph 10.3; or

(c)                 information provided to ArneTech by the Customer to enable ArneTech to develop, modify or alter the Software encroaches on the Intellectual Property Rights of a third party.

10.6          In defence or settlement of any claim, ArneTech may, at its option and expense:

(a)                 modify the Software so that it becomes non-infringing;

(b)                 obtain for the Customer a licence to continue to use the Software;

(c)                 obtain for the Customer any rights to enable it to continue to use the Software in accordance with the terms of this agreement; or

(d)                 terminate this agreement immediately by notice in writing to the Customer and refund any of the Fees paid by the Customer as at the date of termination (less a reasonable sum in respect of the Customer’s use of the Software to the date of termination) on return of the Software and all copies thereof.

10.7          This clause 10 sets out the sole remedies available to the Customer for breach of the warranty in clause 9.2.  ArneTech excludes all liability for breach of any other Intellectual Property Rights.

11.             Limitation of Liability

11.1          Except for liability in relation to breach of any Non-Excludable Condition:

(a)                 ArneTech will under no circumstances whatsoever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with this Agreement; and

(b)                 ArneTech's total liability to the Customer in respect of all other losses arising under or in connection with this Agreement, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the total value of the Fees paid in the preceding twelve (12) month period at the time of the event giving rise to such liability.

11.2          ArneTech's total liability to the Customer for a breach of any Non-Excludable Condition (other than a Non-Excludable Condition that cannot be limited by law) is limited, at ArneTech's option, to any one of resupplying, replacing or repairing, or paying the cost of resupplying, replacing or repairing the goods or services in respect of which the breach occurred, or supplying again or paying the cost of supplying again, the goods or services in respect of which the breach occurred.

12.             General

12.1          Survival

Clauses 3, 4, 5, 6, 9, 10, 11, and 12 and any other clauses which by their nature should continue to apply, will survive termination of this Agreement.

12.2          Non-disparagement

Both parties agree not to disparage the other party or their respective products or services.

12.3          Interpretation of terms

To the extent there is any inconsistency between this Agreement the Schedules, and any Special Conditions, the document listed first in this clause will take precedence:

(a)                 Special Conditions;

(b)                 Software Terms;

(c)                 Services Terms; and

(d)                 these General Supply Terms.

12.4          Goods and Services Tax (GST)

All Fees referred to in this Agreement are exclusive of GST. 

12.5          Notices

All notices must be in writing and delivered to the other party by post, courier or email.

12.6          No variation

This Agreement cannot be amended or varied except in writing signed by the parties.

12.7          No assignment or subcontractors

The Customer cannot subcontract, assign or otherwise transfer the benefit of this Agreement to any other party.

12.8          Severability

Should any provision of this Agreement be determined to be unenforceable or prohibited by applicable law, such provision shall be ineffective only to the extent of such unenforceability or prohibition without invalidating the remainder of such provision or the remaining provisions of this Agreement.

12.9          Governing law

This Agreement shall be governed by the laws of Victoria. The parties submit to the exclusive jurisdiction of the courts and tribunals of the governing law jurisdiction.

12.10      Counterparts

If this Agreement consists of a number of signed counterparts, each is an original and all of the counterparts together constitute the same document.

12.11      Interpretation

In this Agreement, except where the context otherwise requires:

(a)                 the singular includes the plural and vice versa, and a gender includes other genders;

(b)                 another grammatical form of a defined word or expression has a corresponding meaning;

(c)                 a reference to a document or instrument includes the document or instrument as novated, altered, supplemented or replaced from time to time;

(d)                 a reference to A$, $A, dollar or $ is to Australian currency;

(e)                 a reference to time is to the time in Victoria, Australia;

(f)                   a reference to a person includes a natural person, partnership, body corporate, association, governmental or local authority or agency or other entity;

(g)                 a reference to a statute, ordinance, code or other law includes regulations and other instruments under it and consolidations, amendments, re‑enactments or replacements of any of them;

(h)                 the meaning of general words is not limited by specific examples introduced by including, for example or similar expressions;

(i)                   headings are for ease of reference only and do not affect interpretation;

(j)                   any agreement, representation, warranty or indemnity in favour of two or more parties (including where two or more persons are included in the same defined term) is for the benefit of them jointly and severally; and

(k)                 a rule of construction does not apply to the disadvantage of a party because the party was responsible for the preparation of this agreement or any part of it.

13.             Definitions

Applicable Laws or Regulations means all laws, statutes, regulations, edicts, by-laws, mandatory codes of conduct, standards and guidelines, whether local, national, international or otherwise existing from time to time to which that party is subject and which is relevant to that party’s rights or obligations.

Customer means the party identified in the Purchase Order.

Commencement Date means the date contained in the Purchase Order. 

Confidential Information means all information (whether written, oral or by another means and whether directly or indirectly) relating to a party, including:

(a)                 the terms (but not the existence) of this Agreement;

(b)                 information which is disclosed, made available, communicated or delivered to the other party in connection with this Agreement;

(c)                 a party's Intellectual Property Rights, software, products, specifications, data, systems, operations, processes, plans or intentions, product information, know‑how and market opportunities;

(d)                 business, identity and affairs of a party which comes into the possession of the other party, including any market or commercially sensitive information; or

(e)                 any other information designated by a party as confidential or is considered confidential in nature,

(f)                   but excludes information:

(g)                 which is in or which subsequently enters the public domain other than as a result of a breach of this Agreement;

(h)                 which is lawfully obtained by the recipient from another person entitled to disclose such information;

(i)                   which is independently developed by the recipient; or

(j)                    which is disclosed pursuant to legal requirement or order.

Fees means the fees set out in Schedule 1. 

Further Term means 12 months, unless specifically set out otherwise in the Purchase Order, Software Terms or the Services Terms.

"GST" means goods and services tax imposed pursuant to the A New Tax System (Goods and Services Tax) Act 1999 (Cth).

Initial Term means the initial term set out in the Purchase Order.

Insolvency Event means, in relation to a party:

(a)                 a receiver, receiver and manager, controller, managing controller, administrator, trustee or provisional or official liquidator is appointed over the assets or undertaking of the party;

(b)                 the party:

(c)                 suspends payments of its debts generally;

(d)                 is or becomes insolvent within the meaning of the Corporations Act;

(e)                 enters into or resolves to enter into any arrangement, composition or compromise with, or assignment for the benefit of, its creditors or any class of them; or

(f)                   an application is filed or an order is made or resolution passed for the winding up or dissolution of the party, other than for the purposes of a reconstruction or amalgamation.

Intellectual Property Rights means any intellectual property right in or relating to the Software, including but not limited to:

(a)                 patents, designs, copyright, rights in circuit layouts, trademarks, know how, brand names, inventions, product names, trade secrets and any other rights subsisting in the results of intellectual effort in any field, whether or not registered or capable of registration;

(b)                 any application or right to apply for registration of any of these rights;

(c)                 any registration of any of those rights or any registration of any application referred to in paragraph (b); and

(d)                 all renewals and extensions of these rights.

Non-excludable Condition means an implied condition or warranty the exclusion of which from a contract would contravene any statute (including the Competition and Consumer Act 2010 (Cth)) or cause any part of the contract to be void.

Purchase Order means the purchase order between ArneTech and the Customer for the Software and the Services, or a quotation provided to the Customer by ArneTech that the Customer subsequently agrees to.

Software means the software listed in Schedule 2.

Software Supplier means, as applicable, the supplier of the Software, details of which are set out in the Software Terms and/or Services Terms as the case may be.

Software Terms means the terms for the use of the Software, set out in Schedule 2.

Services means the professional, consultancy, and support services described in Schedule 3.

Services Terms means the terms upon which the Services are provided, set out in Schedule 3.

Special Conditions means any special conditions set out in the Purchase Order.

Term means the Initial Term and any Further Term, until the Agreement is terminated by either party in accordance with clause 5.