Online Managed Service Terms
- These Terms
- These Terms apply to Agreed Proposals
- These online managed service terms (Terms) apply to each Agreed Proposal.
- The Term of any Agreed Proposal will commence on the Commencement Date and continues for:
- the initial period set out in that Agreed Proposal, and
- subject to clause 1.1(c), and unless otherwise set out in an Agreed Proposal, one or more renewal periods of a duration equal to that of the initial period set in that Agreed Proposal, until that Agreed Proposal is terminated earlier in accordance with the terms of that Agreed Proposal or these Terms (Term).
- At least 60 calendar days’ prior to the expiry of the then-current initial period or renewal period (as applicable), either party may notify the other that it does not wish for the Agreed Proposal to be renewed and in that event, the Agreed Proposal will expire at the end of the then-current Term.
- Additional Terms
- Additional Agreements
- Depending on the Managed Services that Enablo agrees to supply to the Customer in an Agreed Proposal, the Customer will be required to enter into an Additional Agreement with Enablo or a Relevant Supplier and remain bound by that Additional Agreement throughout the Term. Any Additional Agreement will be indicated on the relevant Agreed Proposal.
- Any Additional Agreement entered into by the Customer with a Relevant Supplier is between the Customer and the Relevant Supplier, and not Enablo.
- Unless otherwise agreed, Enablo has no liability under an Additional Agreement unless it is party to that Additional Agreement.
Depending on the Managed Services that Enablo agrees to supply to the Customer in an Agreed Proposal, the Customer will be required to accept Additional Terms. Any Additional Terms will be indicated in the relevant Agreed Proposal.
- Managed Services
- Managed Services
- Managed Services can include:
- Services (including the provision of any Deliverables); and/or
- The scope of any Managed Services will be set out in an Agreed Proposal.
- General use restrictions
- use the Managed Services in accordance with all applicable laws;
- not use the Managed Services:
- in breach of these Terms (including any Agreed Proposal and Additional Terms);
- in breach of any Additional Agreement;
- for any purpose other than its internal business purposes;
- to engage in fraudulent or illegal behaviour, or in a way that the Customer knows or ought to reasonably know, infringes any third party’s Intellectual Property Rights;
- to transmit, publish or communicate material that is pornographic, defamatory, offensive, abusive, indecent, menacing or unwanted;
- to circumvent any security measures, or to gain unauthorised access to or interfere with any third party’s online resources or systems including any form of hacking; or
- in a way that disrupts, misuses or excessively uses the hardware, bandwidth access, storage space or other resources of Enablo or Enablo’s other customers; and
- ensure that its Personnel comply with subclauses 2.2(a) and 2.2(b) above.
- Customer’s responsibilities
- The Customer must:
- give Enablo all Customer Material, information and assistance reasonably necessary to enable Enablo to provide the Managed Services;
- provide all reasonable assistance and promptly perform any Customer Responsibilities to enable Enablo to supply the Managed Services in an efficient and timely manner; and
- cooperate with Enablo and act reasonably in connection its receipt of the Managed Services.
- The Customer acknowledges and agrees that if the Customer does not comply with 2.3(a), Enablo:
- may not be able to supply the Managed Services to the Customer; and
- is not responsible or liable for any delay in the provisions of the Managed Services arising in connection with any failure of the Customer (or the Customer’s Personnel) to comply with clause 2.3(a).
- Third parties that are not Enablo’s direct subcontractors are the Customer’s responsibility. To the extent permitted by law, Enablo is not responsible for products and services provided by third parties to the Customer.
- Managed Services are provided by Enablo on a non-exclusive basis.
- Enablo will use reasonable endeavours to provide the Services in accordance with the applicable Agreed Proposal by any relevant Delivery Date.
- Enablo will not be responsible for any failure to provide the Services and Deliverables where any assumptions stated in the Agreed Proposal are not met.
- If Enablo provides any Services at the premises of the Customer or a third party’s premises:
- the Customer will be present at those premises at the required times to enable Enablo to perform its obligations at the times reasonably required by Enablo under the Agreed Proposal; and
- the Customer will provide the contact details for individuals that can be contacted at any time to provide Enablo with immediate access to those premises if necessary for Enablo to comply with its obligations under the Agreed Proposal.
- The Customer shall ensure that it has obtained, paid for, prepared, installed, configured and (if applicable) networked any equipment and software in preparation for Enablo’s provision of the Services by the appropriate time.
- Enablo must provide the Services agreed in any Agreed Proposal with due care and skill.
- The Customer is responsible for the acts and omissions of any user of a Product as if they were its own acts or omissions (regardless of whether that user was authorised by the Customer or not).
- The Customer warrants that it is not subject to EU, US or other trade sanctions or economic restrictions.
The Customer must:
- Fees, Expenses and invoices
- The Customer must pay all applicable Fees and Expenses to Enablo.
- Fees and Expenses may be payable on a fixed price basis or a time and materials basis. If an Agreed Proposal states that the Fees and Expenses are an estimate only, the Customer acknowledges and agrees that the Fees and Expenses charged for the Services will be based on Enablo’s estimate, however the final Fees and Expenses may be more or less than that estimate.
- Except in the event of termination due to Enablo’s breach, Fees are (subject to clause 1.1(c)) non-cancellable and non-refundable.
- Invoice and payment
- Enablo must invoice the Customer for the Fees, Expenses and any other amount payable by the Customer to Enablo in accordance with these Terms and any Approved Proposal.
- The Customer must pay an invoice issued to Enablo, without set-off, by the date specified on the invoice, or otherwise within 30 days after the date of issue of the invoice.
- The Customer shall pay Enablo electronically to Enablo’s bank account or by any payment method reasonably stipulated by Enablo. No payment shall be considered paid until it is received in cleared funds by Enablo.
- The relevant Agreed Proposal will stipulate the currency in which payment will be made.
- If the Customer does not dispute any invoice prior to the date for payment of that invoice, it will be deemed to have accepted the invoice.
- If the Customer wishes to dispute any portion of an invoice, the Customer agrees to pay the undisputed portion of the invoice in accordance with the payment terms set out in the invoice.
- Where permitted by law, Customer must pay any merchant fees, bank fees and currency conversion fees associated with its payment.
- Late payment
- charge Interest on the amount due but unpaid and on amounts that have been disputed where the dispute has been resolved in Enablo’s favour from time to time from the due date until payment (after as well as before judgment); and
- suspend the Services pursuant to clause 8.5(a)(v).
If the Customer is late in paying any part of any monies due to Enablo, Enablo may (without prejudice to any other right or remedy available to it whether under these Terms or an Agreed Proposal or by any statute, regulation or by-law) do any or all of the following:
- Intellectual property
- Enablo Materials and Services
- Unless expressly specified otherwise in these Terms or an Agreed Proposal:
- Enablo retains ownership of all Intellectual Property Rights subsisting in all Enablo Materials; and
- any modification or enhancement to any Enablo Material is deemed to form part of the Enablo Materials (as applicable) and all Intellectual Property Rights in such modification or enhancement vest in Enablo immediately from creation.
- If any Enablo Materials are modified or enhanced by or on behalf of the Customer, then the Customer:
- assigns to Enablo all Intellectual Property Rights it has in such modification or enhancement immediately from creation; and
- where applicable, must procure that the relevant third party assigns to Enablo all Intellectual Property Rights that the relevant third party has in such modification or enhancement,
- Enablo grants to the Customer:
- a perpetual, non-exclusive, non-assignable, non-sublicensable, global licence to use the Intellectual Property Rights in any Enablo Materials that form part of a Deliverable, solely for internal business use for purpose of enjoying use of that Deliverable; and
- for the Term of the relevant Agreed Proposal, a non-exclusive, non-assignable, non-sublicensable, global licence to use the Intellectual Property Rights in any Enablo Materials and Third Party Materials that form part of the Services, solely for internal business use for purpose of enjoying those Services.
- Enablo EULA Software is licensed under the terms of Enablo EULA and is not governed by these Terms.
- Enablo warrants that use of the Enablo Material by the Customer (other than any modifications and enhancements to the Services or Enablo Material made by or on behalf of the Customer) in accordance with these Terms and any Agreed Proposal will not infringe any third-party rights (including Intellectual Property Rights).
- Customer Material
- Unless expressly specified otherwise in these Terms or any Agreed Proposal:
- the Customer or its licensors (as applicable) retains ownership of all Intellectual Property Rights subsisting in all Customer Materials; and
- any modification or enhancement to any Customer Material is deemed to form part of the Customer Materials and all Intellectual Property Rights in such modification or enhancement vest in the Customer immediately from creation.
- If any Customer Material is modified or enhanced by or on behalf of Enablo, then Enablo assigns to the Customer all Intellectual Property Rights it has in such modification or enhancement immediately from creation (and will do all things necessary to give effect to that assignment).
- The Customer grants to Enablo for the Term a non-exclusive, global licence to use, reproduce and modify the Customer Material solely for purposes providing the Services to the Customer and otherwise to perform its obligations under these Terms and the relevant Agreed Proposal. This licence includes the right to sublicense.
- The Customer warrants that use of:
- the Customer Material by Enablo in accordance with these Terms and the relevant Agreed Proposal; and
- any modifications and enhancements to the Enablo Material made by or on behalf of the Customer,
- Developed Material
- Unless otherwise set out in an Agreed Proposal, any Developed Material is owned by Enablo, and to the extent Developed Material does not automatically vest in Enablo, the Customer assigns all Intellectual Property Rights in or in relation to any Developed Material to Enablo.
- If requested by Enablo, the Customer must bring into existence, sign, execute or otherwise deal with any document or take any action which may be necessary to enable the vesting of the Intellectual Property Rights contemplated by clause 4.3(a) in Enablo.
- Use of the Customer’s marks and promotional content
and must ensure that any necessary document is signed, or any other necessary things are done, as required to give effect to that assignment.
will not infringe any third-party rights (including Intellectual Property Rights).
The Customer grants Enablo the right to use the Customer’s name, logo, trade marks, branding and any materials created for the Customer by Enablo in Enablo’s promotional and marketing material from time to time.
- Confidential Information
- Protection of Confidential Information
- maintain the confidentiality of the other party’s Confidential Information;
- ensure that any person who has access to Confidential Information of the other party through it or on its behalf does not use, copy or disclose that Confidential Information other than in accordance with these Terms; and
- enforce the confidentiality obligations required by these Terms.
- Restriction on disclosure
- Each party must not disclose the Confidential Information of the other party to any person except:
- to its Personnel who need to know the Confidential Information for the purposes of these Terms and the relevant Agreed Proposal;
- by Enablo to a Relevant Supplier in connection with the Managed Services;
- where the disclosure is required by applicable law, or under compulsion of law by a court or Government Agency or by the rules of any relevant stock exchange or regulator, as long as the disclosing party:
- discloses the minimum amount of Confidential Information required to satisfy the law or rules; and
- before disclosing any information, gives a reasonable amount of notice to the other party and takes all reasonable steps (whether required by the other party or not) to maintain such Confidential Information in confidence;
- if the other party has given its consent to the disclosure or use; or
- as expressly permitted by these Terms.
- Before disclosing Confidential Information to a person, the disclosing party must take reasonable steps to ensure that the person is aware of the confidential nature of the Confidential Information and is bound by confidentiality obligations that are substantially similar to those set out in these Terms.
- Return of Confidential Information
- Subject to clause 5.3(b), each party must return (or, if requested by the other party, destroy or permanently de-identify) all copies of the other party’s Confidential Information in its possession or control within 10 Business Days of expiry or termination of the relevant Agreed Proposal.
- If a party needs to retain the other party’s Confidential Information for the purpose of:
- complying with any applicable law;
- internal quality assurance and record-keeping; or
- performing its obligations or exercising its rights under these Terms and the relevant Agreed Proposal,
- that is in the public domain otherwise than as a result of a breach of these Terms and the relevant Agreed Proposal or other obligation of confidence; or
- that is already known by, or rightfully received, or independently developed, by the recipient of that Confidential Information free of any obligation of confidence.
- Injunctive relief
- the other party may suffer financial and other loss and damage if any unauthorised act occurs in relation to Confidential Information of the other party, and that monetary damages would be an insufficient remedy; and
- in addition to any other remedy available at law or in equity, the other party is entitled to injunctive relief to prevent a breach of, and to compel specific performance of this clause 5.
Each party must only use or copy the other party’s Confidential Information for the purposes of these Terms and the relevant Agreed Proposal and must take all steps reasonably necessary to:
then it may retain and use it solely for this purpose but must deal with the Confidential Information in accordance with clause 5.3(a) promptly after it is no longer required for this purpose.
The obligations of confidence in clauses 5.1 and 5.2 do not apply to Confidential Information:
Each party acknowledges that:
- Enablo’s obligations
- in accordance with applicable Privacy Laws; and
- only as required for the purposes of providing the Managed Services or as otherwise expressly permitted under these Terms.
- Customer’s obligations
- The Customer must comply with the Privacy Laws when handling any Personal Information provided or made available to it by or on behalf of Enablo.
- If the Customer provides, discloses or otherwise makes available to Enablo (or its Personnel) any Customer Personal Information, the Customer must make all disclosures and obtain all consents required to ensure that:
- the Customer is lawfully (including without breaching the Privacy Laws) able to provide, disclose or make available the Customer Personal Information to Enablo and its Personnel and any Relevant Supplier; and
- Enablo and any Relevant Supplier is lawfully (including without breaching the Privacy Laws) able to collect, store, use, disclose or otherwise deal with the Customer Personal Information for the purposes of providing the Services and otherwise performing its obligations under these Terms and the relevant Agreed Proposal (and any Additional Agreement, as applicable).
- Relevant Supplier
If and to the extent Enablo collects, stores, uses, discloses or otherwise deals with Customer Personal Information, Enablo must only collect, store, use, disclose or otherwise deal with Customer Personal Information:
The treatment of information that Customer or Enablo provides to a Relevant Supplier is governed by the applicable Additional Terms or Additional Agreement.
- Limitation of liability
- Limitation of liability
- Reduction of liability
- Exclusion of liability
- neither party is liable for any Consequential Loss however caused (including by the negligence of a party or its Personnel), suffered or incurred in connection with these Terms or an Agreed Proposal; and
- Enablo is not liable for Loss arising in connection with any failure in, fault with or degradation of the Services if that failure, fault or degradation is attributable to or caused by a failure of the facilities or services of any third party.
- Australian consumer law
- Uncapped heads of liability
- death of, or personal injury to, any person that is caused by that party or its Personnel;
- loss of, or damage to, tangible property that is caused by that party or its Personnel;
- any breach of a confidentiality obligation set out in these Terms by that party or its Personnel;
- any breach of a privacy obligation set out in these Terms by that party or its Personnel;
- any unlawful or fraudulent act or omission of that party or its Personnel; or
- in the case of the Customer’s liability:
- any claim against Enablo or its Personnel by a third party arising out of a breach of this Agreement or an Additional Agreement by the Customer or its Personnel; or
- a breach by the Customer or its Personnel of the warranty in clause 4.2(d).
Subject to clauses 7.2, 7.3, 7.4 and 7.5, the aggregate liability of a party for all Loss suffered by the other party in connection with an Agreed Proposal (including where arising under these Terms) is limited to the total Fees paid or payable by the Customer in connection with that Agreed Proposal.
To the extent permitted by law the liability of a party under or in connection with these Terms and the relevant Agreed Proposal will be reduced proportionately by the extent, if any, to which a breach of the relevant Agreed Proposal or these Terms by, or the negligent acts or omissions of, the other party (or its Personnel) caused or contributed to the relevant Loss suffered or incurred by the other party.
Subject to clauses 7.4 and 7.5:
If the Competition and Consumer Act 2010 (Cth) or any other legislation states that there is a guarantee in relation to any good or service supplied by Enablo in connection with an Agreed Proposal or these Terms, and Enablo’s liability for failing to comply with that guarantee cannot be excluded but may be limited, clauses 7.1 and 7.3 (and any inconsistent limitation or exclusion expressed elsewhere in these Terms or the Agreed Proposal) do not apply to that liability and instead Enablo’s liability for such failure is limited to (at the election of Enablo), in the case of a supply of goods, Enablo replacing the goods or paying the cost of having the goods repaired or replaced or supplying equivalent goods or repairing the goods, or in the case of a supply of services, Enablo supplying the services again or paying the cost of having the services supplied again.
Subject to clause 7.2, the parties agree that the limitations and exclusions of liability set out in these Terms do not apply where a party’s liability arises from:
Enablo may, from time to time, refer the Customer to preferred suppliers or other third parties. The Customer acknowledges and agrees that any referral is not a recommendation by Enablo that the Customer seeks that third party’s advice or provision of services. Enablo do not make any warranty or representation as to the quality of the facilities or services of any third party
- Termination and suspension
- Termination for breach
- a party (the first party) commits a breach of these Terms, an Additional Agreement or any Agreed Proposal that has a material and adverse effect on the other party, and fails to remedy that breach within 10 days of receiving notice from the other party requiring the first party remedy that breach (where capable of remedy); or
- an Insolvency Event occurs in relation to the first party,
- No termination for convenience
- After termination or expiry of an Agreed Proposal
- Enablo will cease to provide the Managed Services under that Agreed Proposal;
- accrued rights or remedies of a party are not affected;
- the Customer will pay to Enablo all Fees in connection with Managed Services and any Expenses incurred in connection with that Agreed Proposal;
- except as expressly specified otherwise in these Terms or that Agreed Proposal, all licences and similar rights granted, cease to be granted immediately; and
- within a reasonable period of time after termination or expiry of the Agreed Proposal, the Customer must return to Enablo all Enablo Materials and Enablo must return to the Customer all Customer Materials, in each case, in connection with that Agreed Proposal.
- Without limiting any other remedy Enablo may have under these Terms or at law, Enablo may suspend the Customer’s access to the Managed Services if:
- the Customer breaches this agreement;
- the Customer breaches any Additional Agreement;
- a Relevant Supplier terminates its Additional Agreement with the Customer or refuses to enter into an Additional Agreement with the Customer;
- a Relevant Supplier terminates its agreement with Enablo;
- the Customer has not paid Enablo the Fees and Expenses in accordance with these Terms or the relevant Agreed Proposal, provided that Enablo shall first have given to the Customer at least seven days’ notice that the Managed Services would be suspended if the outstanding sums are not paid in full;
- Enablo receives a notice from a third party with a legitimate interest to be protected (including any regulatory body) requiring Enablo to cease providing the Managed Services to the Customer or remove any content the Customer is making available through the Managed Services. Subject to any contrary legal requirements, Enablo shall provide the Customer with a copy of the notice.
- Enablo will restore the Customer’s access to the Managed Services as soon as reasonably possible once the reason for the suspension has been addressed or removed.
- If Enablo suspends the supply of any Managed Services for a period of 10 Business Days or more, it may provide written notice to the Customer of termination of the Agreed Proposal that relates to such Managed Services.
then the other party may terminate the relevant Agreed Proposal (in the case of 8.1(b) above, subject to any provision of the Corporations Act 2001 (Cth) or any related subordinate legislation that may prevent or restrict the exercise of a right of termination or other right under these Terms and the relevant Agreed Proposal) by notice to the first party in which case the relevant Agreed Proposal will terminate on the date specified in that notice or, if no date is specified, immediately.
Without limiting clause 1.1(c), neither party has a right to terminate for convenience.
On termination or expiry of an Agreed Proposal:
Termination or expiry of an Agreed Proposal will not affect indemnities, clauses 4, 5, 6, 7, 8.2, 9, 10, 12 and this clause 8.4, or any provision of these Terms which is expressly or by implication intended to come into force or continue on or after the termination or expiry.
- Any dispute that is not resolved within 90 days of the dispute arising must be referred to and finally resolved by arbitration in accordance with the arbitration rules of the Australian Centre for International Commercial Arbitration (known as ACICA Arbitration Rules).
- Notwithstanding anything in this clause 9, a party may at any time commence court proceedings in relation to a dispute or claim arising in connection with these Terms or the relevant Agreed Proposal where that party seeks urgent interlocutory relief.
- General principles
- The parties agree that
- the seat of the arbitration will be Brisbane;
- the number of arbitrators will be one; and
- the language of the arbitration will be English.
- Award final and binding
Any award made in respect of arbitration conducted pursuant to this clause 9 will be final and binding upon the parties.
- During the Term and the Restraint Period, the Customer will not solicit or entice any employee or contractor of Enablo to work for the Customer or any competitor of Enablo’s business, unless the Customer obtains Enablo’s prior written consent.
- The Restraint Period means:
- 24 months;
- 12 months;
- 6 months.
- The undertakings contained in clause 10(a) and resulting from any combination of the wording from clause 10(b) constitutes a separate and independent provision, severable from the other undertakings and enforceable by Enablo separately against the Customer and independently of each of the other undertakings. If a court of competent jurisdiction finally decides any such undertaking to be unenforceable in whole or in part, the enforceability of the remainder of that undertaking or any other undertaking will not be affected.
- If the Customer breaches this clause 10 or Enablo forms the reasonable view that the Customer is likely to breach this clause 10, the parties agree that:
- damages are not an adequate remedy; and
- Enablo may apply for injunctive relief.
- The Customer agrees that the undertakings contained in clause 10(a) and resulting from any combination of the wording from clause 10(b) are no more extensive than is reasonable to protect Enablo.
- Force majeure
A party will not be:
- in breach of these Terms or an Agreed Proposal as a result of; or
- liable for,
- that party advises the other party of the details of the Force Majeure Event, and its likely effect on the performance of its obligations under these Terms or the Agreed Proposal; and
- that party takes all steps reasonably necessary to recommence performance of the affected obligations and minimise the delay caused by the Force Majeure Event.
any failure or delay in the performance of its obligations (other than a payment obligation) under these Terms or an Agreed Proposal to the extent that such failure or delay is wholly or partially caused, directly or indirectly, by a Force Majeure Event, provided that:
- Method of giving notice
- in writing, in English, signed by or on behalf of the person giving it;
- addressed to the person to whom it is to be given; and
- given as follows:
- delivered by hand to that person’s address;
- sent to that person’s address by prepaid mail or by prepaid airmail, if the address is overseas; or
- by email to that person’s email address.
- When is notice given
- that day, if delivered by 5.00pm on a Business Day; or
- the next Business Day, in any other case.
- three Business Days after posting, if sent within Australia; or
- seven Business Days after posting, if sent to or from a place outside Australia.
- Address for notices
A notice, consent or communication under an Agreed Proposal or these Terms is only effective if it is:
When a Dispute Notice, termination or breach given under these Terms, is given by email a copy must also be given by hand or pre-paid post, failing which the notice sent by email will be void and have no effect.
A notice, consent or communication given under clause 12.1 is given and received on the corresponding day set out in the table below. The time expressed in the table is the local time in the place of receipt.
If a notice is It is given and received on Delivered by hand Sent by post Sent by email The second Business Day after the date of sending provided that the party giving notice has not received a delivery failure or similar notification (in which case notice will not have been given).
The relevant addresses and email addresses of each party are those set out in the applicable Statement of Work, or as the person notifies the sender (as applicable).
- GST exclusive
- Taxable Supply
- the Recipient must pay the GST Act Supplier an amount equal to the total GST for the Supply, in addition to and in the same manner as the consideration otherwise payable under a Statement of Work or these Terms for that Supply; and
- the GST Act Supplier must give the Recipient a Tax Invoice for the Supply.
- Later GST change
For clarity, the GST payable under clause 13.3 is correspondingly increased or decreased by any subsequent adjustment to the amount of GST for the Supply for which the GST Act Supplier is liable, however caused.
- Reimbursement or indemnity
If either party has the right under a Statement of Work or these Terms to be reimbursed or indemnified by another party for a cost incurred in connection with these Terms or the relevant Statement of Work, that reimbursement or indemnity excludes any GST component of that cost for which an Input Tax Credit may be claimed by the party being reimbursed or indemnified, or by its Representative Member, Joint Venture Operator or other similar person entitled to the Input Tax Credit (if any).
- Warranty that Tax Invoice is issued regarding a Taxable Supply
Where a Tax Invoice is given by the GST Act Supplier, the GST Act Supplier warrants that the Supply to which the Tax Invoice relates is a Taxable Supply and that it will remit the GST (as stated on the Tax Invoice) to the Australian Taxation Office.
- Progressive or Periodic Services
Where a Supply made under or in connection with a Statement of Work or these Terms is a Progressive or Periodic Supply, clause 13.3 applies to each component of the Progressive or Periodic Supply as if it were a separate Supply.
Terms used in this clause 13 that are defined in the GST Act have the meaning given to them in the GST Act.
Except under clause 13, the consideration for a Supply made under or in connection with a Statement of Work or these Terms does not include GST.
If a Supply made under or in connection with a Statement of Work or these Terms is a Taxable Supply, then at or before the time any part of the consideration for the Supply is payable:
- Subject to clause 14.1(b), if there is any
inconsistency between the provisions of this agreement, a descending order of precedence will be accorded to:
- any Additional Terms incorporated into this document in accordance with clause 1.2 (in relation to the relevant Service only);
- these Terms; and
- any Statement of Work;
- Subject to 14.1(c), where a term in a Statement of Work is inconsistent with any the terms of these Terms, that term will prevail over the inconsistent term(s) of these Terms only in relation to that SOW and only where it clearly:
- states that the parties have agreed to a provision that is inconsistent with these Terms; and
- identifies the provision in these Termswith which it is inconsistent.
- In the event of any inconsistency, clauses 5, 6, 7 and 8 of these Terms will always prevail over any term in a Statement of Work.
- The parties agree that any standard terms, purchase order terms or similar that are provided or made available by the Customer will have no legal effect.
- Rights cumulative
- An Agreed Proposal may only be amended or varied by written agreement between the parties.
- Enablo may update these Terms from time to time. If the Customer is an existing customer, Enablo will inform that Customer when these Terms are updated.
- Assignment, novation and change of Control
- Any rights or obligations of the Customer that arise out of or under a Statement of Work or these Terms are not assignable or able to be novated or otherwise dealt with by the Customer without the prior written consent of Enablo.
- The Customer may not undergo a Change of Control without Enablo’s prior written consent.
- A breach of clause 14.6(a) or clause 14.6(b) by the Customer entitles Enablo to terminate any or all Statements of Work.
- Clause 14.6(c) does not affect the construction of any other part of these Terms.
- Entire agreement
- These Terms and the relevant Agreed Proposal supersede all previous agreements about its subject matter. These Terms and the relevant Agreed Proposal embodies the entire agreement between the parties.
- To the extent permitted by law, any statement, representation or promise made in any negotiation or discussion is withdrawn and has no effect except to the extent expressly set out or incorporated by reference in these Terms and the relevant Agreed Proposal.
- Each party acknowledges and agrees that it does not rely on any prior conduct or representation by the other party in entering into an Agreed Proposal and these Terms.
- Further assurances
- Governing law and jurisdiction
- The laws of Queensland, Australia govern each Agreed Proposal and these Terms.
- Each party irrevocably submits to the non-exclusive jurisdiction of the courts of Queensland, Australia and courts competent to hear appeals from those courts.
- The terms of any Additional Agreements may be subject to separate governing laws and jurisdictions.
- No waiver
- The failure of a party at any time to require full or partial performance of any provision of an Agreed Proposal or these Terms does not affect in any way the right of that party to require that performance subsequently.
- A single or partial exercise of or waiver of the exercise of any right, power or remedy does not preclude any other or further exercise of that or any other right, power or remedy.
- A right under an Agreed Proposal or these Terms may only be waived in writing signed by the party granting the waiver, and is effective only to the extent specifically set out in the waiver.
- Relationship between parties
- Relevant Suppliers
- Enablo may subcontract the performance of all or any part of its obligations under an Agreed Proposal or these Terms.
- The Customer must not subcontract the performance of all or any part of its obligations under an Agreed Proposal or these Terms without the prior consent of Enablo.
so that the provision in the higher ranked document, to the extent of the inconsistency, will prevail.
Unless expressly stated otherwise in these Terms, the rights and remedies under any indemnity or otherwise provided under these Terms are cumulative and not exclusive of any rights or remedies provided by law or any other right or remedy.
Where Enablo may exercise any right or discretion or make any decision under these Terms or a Statement of Work, Enablo may do so in its absolute discretion, conditionally or unconditionally, and without being required to give reasons or act reasonably. Clause 14.4 applies unless these Terms or a Statement of Work (as applicable) expressly require otherwise.
Each party must bear its own costs in relation to the preparation, negotiation, signing and performance of any Statement of Work and these Terms.
A Statement of Work may be executed in any number of counterparts and all counterparts together make one instrument.
The Customer must do all things necessary to give effect to an Agreed Proposal and these Terms and the transactions contemplated by it. Without limiting the foregoing, during the Term, the Customer will make available to Enablo adequate information and facilities necessary to perform the Managed Services.
Unless expressly stated otherwise, an Agreed Proposal and these Terms do not create a relationship of employment, trust, agency or partnership between the parties.
Where Enablo resupplies the products or services of a Relevant Supplier, it will consider the Customer’s reasonable request to transfer that supply of products or services to the Relevant Supplier. In such case, this Agreement will cease to apply in relation to any transferred products or services.
A clause or part of a clause of an Agreed Proposal or these Terms that is illegal or unenforceable may be severed from that Agreed Proposal or these Terms (as applicable) and the remaining clauses or parts of the clause of the relevant Agreed Proposal or these Terms continues in force.
- Definitions and interpretation
In an Agreed Proposal and these Terms:
- Additional Agreement
- means any additional agreement indicated in an Agreed Proposal.
- Additional Terms
- means any additional terms as indicated in an Agreed Proposal.
- Agreed Proposal
- means an Agreed Proposal for the supply of Services that incorporates these Terms, validly executed by both parties, in the form required by Enablo from time to time.
- Business Day
- means a day that is not a Saturday, Sunday or public holiday in Brisbane, Australia.
- Change of Control
- control of the composition of the board of directors of a corporation;
- control of more than half the voting rights attaching to shares in a corporation;
- control of more than half the issued shares of a corporation (excluding any share which carries no right to participate beyond a specified amount in the distribution of either profit or capital); or
- control as defined in the Corporations Act 2001(Cth).
- any allegation, debt, cause of action, liability, claim, proceeding, suit or demand.
- Commencement Date
- the date indicated as such in the corresponding Agreed Proposal.
- Confidential Information
- of a party means these Terms, the terms of any Agreed Proposal and any information:
- relating to the business and affairs of that party;
- relating to the customers, clients, employees, sub-contractors or other persons doing business with that party;
- which is by its nature confidential;
- which is designated as confidential by that party; or
- which the other party knows or ought to know, is confidential,
and includes all trade secrets, knowhow, financial information and other commercially valuable information of that party, and in the case of Enablo, includes any Enablo Material and, in the case of the Customer, includes Customer Material.
- Consequential Loss
- Consequential Loss in clause 7.2 means:
- loss of profits;
- loss of revenues;
- indirect loss;
- loss of use of the Services;
- loss of reputation;
- consequential loss;
- loss of actual or anticipated savings;
- lost opportunities, including opportunities to enter into arrangements with third parties;
- loss or damage in connection with claims against the Customer by third parties; or
- loss or corruption of data.
- Corporations Act
- means Corporations Act 2001 (Cth).
- means Enablo’s counterparty to an Agreed Proposal.
- Customer Material
- means any material provided by or to which access is given by the Customer to Enablo for the purposes of an Agreed Proposal or these Terms including promotional material, marketing plans, business plans, documents, software, object code, source code, configurations, equipment, hardware, reports, technical information, studies, plans, charts, drawings, calculations, tables, schedules and data stored by any means.
- Customer Personal Information
- means any Personal Information of the Customer or any Personnel, customer or end user of the Customer provided to Enablo by the Customer.
- Customer Responsibilities
- means the responsibilities identified as such in an Agreed Proposal.
- Deliverable means a deliverable that Enablo agrees to provide as part of the Services, as specified in an Agreed Proposal (but does not include Enablo EULA Software or Third Party Material).
- Delivery Date
- means the date described as such in the relevant Agreed Proposal.
- Developed Materials
- means materials (of any nature) created by or on behalf of Enablo in the course of providing the Services.
- Enablo EULA
- means Enablo’s click-through licence agreement for Enablo EULA Software, from time to time.
- Enablo Material
- means any material provided by or to which access is given by Enablo to the Customer for the purposes of these Terms or an Agreed Proposal including documents, software, object code, source code, configurations, equipment, hardware, reports, technical information, studies, plans, charts, drawings, calculations, tables, schedules and data stored by any means, and includes all Developed Materials. Enablo Material does not include Third Party Material or Enablo EULA Software.
- Enablo Representative
- means the person set out as such in an Agreed Proposal or any replacement of that person nominated by Enablo.
- Enablo EULA Software
- means software (such as bots) that is provided to the Customer by Enablo and that requires acceptance of Enablo EULA before use.
- any reasonable travel and accommodation expenses; and
- fees for Third Party Material (including but not limited to royalty payments for images) or other disbursements or third party costs that are agreed between the parties in an Agreed Proposal.
- mean the fees set out in an Agreed Proposal and any other amounts contemplated by these Terms as being payable by the Customer to Enablo.
- Force Majeure Event
- means any occurrence or omission outside a party’s control and:
- a physical natural disaster including fire, flood, lightning or earthquake;
- war or other state of armed hostilities (whether war is declared or not), insurrection, riot, civil commotion, act of public enemies, national emergency (whether in fact or in law) or declaration of martial law;
- national emergency;
- epidemic, pandemic, public health emergency, communicable disease outbreak, quarantine restriction, and precautionary measures relating to the same;
- ionising radiation or contamination by radioactivity from any nuclear waste or from combustion of nuclear fuel;
- failure of a third party service provider;
- failure of a third party to provide a necessary input;
- confiscation, nationalisation, requisition, expropriation, prohibition, embargo, restraint or damage to property by or under the order of any Government Agency;
- orders or acts of military, civil authority or Government Agency;
- law taking effect after the Commencement Date; and
- strike, lock-out, stoppage, labour dispute or shortage including industrial disputes that are specific to a party or the party’s subcontractors.
- Government Agency
- a government or government department or other body;
- a governmental, semi-governmental or judicial person; or
- a person (whether autonomous or not) who is charged with the administration of a law.
- GST Act
- means A New Tax System (Goods and Services Tax) Act 1999 (Cth).
- GST Act Supplier
- means the entity making the Supply.
- Insolvency Event
- means any of the following events:
- a controller (as defined in the Corporations Act) is appointed to the party, or over any of the property of the party;
- the party becomes bankrupt;
- a controlling trustee is appointed to the party, or over any of the property of the party;
- the party or the party’s property becomes subject to a personal insolvency arrangement under part X Bankruptcy Act or a debt agreement under part IX Bankruptcy Act;
- the party is unable to pay its debts when they become due and payable;
- the party ceases to carry on business; or
- any event happens in Australia or any other country or territory in respect of a party that is similar to any of the events or circumstances referred to in this definition.
Any event that takes place as part of a solvent reconstruction, amalgamation, merger, or consolidation, on terms approved in writing by the other party beforehand and in compliance with those terms is excluded from this definition.
- Intellectual Property Rights
- means all industrial and intellectual property rights, both in Australia and throughout the world, and includes any copyright, moral right, patent, registered or unregistered trade mark, registered or unregistered design, trade secret, knowhow, right in relation to semiconductors and circuit layouts, trade or business or company name, indication or source or appellation of origin or other proprietary right, or right of registration of such rights.
- means interest on any payment owing under an Agreed Proposal or these Terms calculated:
- at the rate which is 2% in excess of the published Australia and New Zealand Banking Group Limited variable interest rate for commercial overdrafts or, if lower, the maximum rate permitted by applicable law; and
- daily from the date on which such payment was due to the date on which the payment is made (both inclusive) including the relevant Interest.
- means loss, damage, liability, charge, expense, outgoing, payment or cost of any nature or kind, including all legal and other professional costs on a full indemnity basis.
- Managed Services
- means the Products and Services identified as such in Agreed Proposal.
- Personal Information
- has the meaning given to that term in the Privacy Act.
- means a party’s employees, secondees, directors, officers, contractors, professional advisers and agents.
- Privacy Act
- means the Privacy Act 1988 (Cth) and any ancillary rules, guidelines, orders, directions, directives, codes of conduct or other instruments made or issued there under, as amended from time to time./dd>
- Privacy Laws
- the Privacy Act;
- the Australian Privacy Principles (or APPs) contained in Schedule 1 of the Privacy Act ; and
- all other applicable laws, regulations, registered privacy codes, privacy policies and contractual terms in respect of the processing of Personal Information.
- means all products to be provided by Enablo (or, if indicated in an Agreed Proposal, by a Relevant Supplier) to the Customer under an Agreed Proposal and in accordance with these Terms.
- Progressive or Periodic Supply
- means a Taxable Supply that satisfies the requirements of section 156-5 GST Act.
- Related Body Corporate
- has the meaning given to that term by section 9 Corporations Act.
- Relevant Supplier
- means the relevant supplier of a Service as indicated in an Agreed Proposal.
- means all services to be provided by Enablo (or, if indicated in an Agreed Proposal, by a Relevant Supplier) to the Customer under an Agreed Proposal and in accordance with these Terms.
- has the meaning given to it in clause 1.1(b).
- Third Party Material
- means Intellectual Property Rights owned or licensed by a third party.
- a singular word includes the plural and vice versa;
- a word which suggests one gender includes the other gender;
- a reference to a party is a reference to a party to an Agreed Proposal;
- a reference to a party to an Agreed Proposal includes the party’s successors, permitted substitutes and permitted assigns;
- if a word or phrase is defined, its other grammatical forms have a corresponding meaning;
- a reference to an Agreed Proposal or these Terms is to that document as amended, novated, supplemented, varied or replaced;
- a reference to legislation or to a provision of legislation (including subordinate legislation) is to that legislation as amended, re-enacted or replaced, and includes any subordinate legislation issued under it;
- a reference to a person includes a corporation, trust, partnership, unincorporated body, government and local authority or agency, or other entity whether or not it comprises a separate legal entity;
- a reference to ‘month’ means calendar month;
- no rule of construction applies in the interpretation of an Agreed Proposal or these Terms to the disadvantage of the party preparing the document on the basis that it put forward this document or any part of it;
- the meaning of any general language is not restricted by any accompanying example, and the words ‘includes’, ‘including’, ‘such as’ or ‘for example’ (or similar phrases) do not limit what else might be included;
- a reference to ‘writing’ includes any method of representing or reproducing words, figures or symbols in permanent and visible form, but does not include electronic form unless expressly stated to include electronic form;
- clause headings are for convenient reference only and have no effect in limiting or extending the language to which they refer;
- a reference to a clause means the relevant clause in the clauses of these Terms unless the reference or context requires otherwise; and
- a reference to a party is a reference to Enablo or the Customer, and a reference to the parties is a reference to both Enablo and the Customer.
In these Terms and any Statement of Work: