1.1 MPIRE MEDIA is a provider of Products, Services and Support.
1.2 Client wishes to procure from MPIRE MEDIA any combination of Products, Services and Support under the terms of this Agreement.
2.1 “Agreement” means this document, these terms and conditions along with any Appendices.
2.2 “Customisations” means changes and amendments to software applications or new applications developed by MPIRE MEDIA.
2.3 “Maintenance” means software updates, fixes and enhancements provided by a third party vendor.
2.4 “Help Desk” means the provision of telephone, internet or email assistance
2.5 “Products” means third party vendor software applications (including Microsoft), MPIRE MEDIA-developed software applications (“MPIRE MEDIA Products”) and hardware.
2.6 “Services” means the provision of consulting and development activities, including Customisations. This includes but is not limited to: project management, business consulting, training, software configuration, IT Infrastructure engineering.
2.7 “Support” means Maintenance and/or Help Desk.
2.8 “Vendor” means a third party software developer that owns and licenses a Product (such as Oracle or Microsoft).
2.9 GST has the meaning given to it in the A New Tax System (Goods and Services Tax) Act 1999.
3.1 The supply of Products, Services and Support from MPIRE MEDIA to the Client are governed by this Agreement.
3.2 This agreement does not replace or override any license agreements provided by a Vendor in regard to any Product.
3.3 MPIRE MEDIA agrees to provide Services to Client as verbally requested by Client or as described in written form such as (but not limited to) an Engagement Letter, Project Management Plan, Work Order, Software and Solution Proposal, Change Requests or Statements of Work which will form exhibits to these terms and conditions (collectively, the “Agreement”).
3.4 Services may be provided either at MPIRE MEDIA premises, a Client site or other location as required by MPIRE MEDIA.
3.5 Retention of Title: Risk of Products transfers to the client at time of delivery, but MPIRE MEDIA retains full title until all amounts due in relation to the supply of those Products have been received by MPIRE MEDIA.
3.6 Any unused portions of Support is not refundable to the Client should this agreement be terminated for any reason.
4 Commercial Terms
4.1 All amounts in this Agreement are specified and payable in Australian Dollars and are exclusive of GST and other government taxes charges or imposts unless otherwise stated. Any such charge, tax or impost shall be additionally charged to the Client at the required rate
4.2 Time and Materials Services are invoiced weekly in arrears based on work performed.
4.3 All software and hardware will be invoiced and must be paid within 7 days of delivery. Delivery for software is defined as the physical installation on the client’s hardware or the provision of the software programs in electronic form to the Client from MPIRE MEDIA. The method of delivery to be at the sole discretion of MPIRE MEDIA.
4.4 Support and Maintenance fees are payable annually in advance or monthly in advance via Direct Debit for Products where MPIRE MEDIA holds Direct Debit authority.
4.5 The Client agrees to pay for all invoices within 21 days following date of the invoice unless stated otherwise on the invoice.
4.6 Travel Time between MPIRE MEDIA and the client’s premises is chargeable at our prevailing rates.
4.7 MPIRE MEDIA reserve the right to refuse provision of Support and Services where Client account is not maintained within agreed payment terms.
4.8 MPIRE MEDIA reserve the right to charge interest on amounts overdue by more than 90 days at the prevailing CBA Corporate Charge Card rate. The client will also be liable for all collection and legal costs incurred by MPIRE MEDIA in regard to collecting any amounts overdue.
5 Term and Termination
5.1 The term of the Agreement shall commence on the Effective Date until terminated in writing by either party.
5.2 Any party may terminate this Agreement by providing 90 days written notice.
5.3 Either party may terminate this Agreement immediately upon written notice to the other party if the other party enters into administration or liquidation.
5.4 MPIRE MEDIA may terminate the Agreement immediately with written notice if any invoice is unpaid for a period greater than 90 days following its due date.
6 Limited Warranty
6.1 MPIRE MEDIA represents and warrants that: (i) it has the authority to enter into this Agreement; (ii) it will comply with all applicable law; (iii) Services will be provided in a professional and workmanlike manner; and (iv) to the best of its knowledge, Products, Services and Support will not violate the copyright or proprietary rights of any third party, provided, however, that MPIRE MEDIA expressly disclaims any warranty relating to infringement resulting from MPIRE MEDIA’s use of tools, instructions, specifications, or other materials provided by Client to MPIRE MEDIA (“client materials”) and provided, further, that the foregoing warranty shall not apply where Client or its Agents make modifications to any aspect of the results of the Services.
6.2 Client represents and warrants that: (i) it has the authority to enter into this Agreement; (ii) it will comply with all applicable law; (iii) it has or has obtained the right to permit MPIRE MEDIA to supply any of the Products, Services or Support contemplated by this Agreement; and (iv) in entering into this Agreement it has relied upon its own experience, skill and judgement to evaluate the Products, Services and Support and that it has satisfied itself as to the suitability of the Products, Services and Support to meet its requirements.
6.3 Customisations that are provided on a fixed rate basis are subject to a 90 day warranty from the date of delivery. The investigation and rectification of any errors or issues arising after this period will be resolved using chargeable Services.
6.4 Customisations that are provided on a time and materials basis have no warranty entitlements and the investigation and rectification of all errors and issues will be charged to the client at our prevailing rates.
7 Vendor Software Updates
7.1 For Products which the Client has licensed and has paid the relevant Maintenance fees, the Vendor will from time to time, supply at no additional charge, new software versions and upgrades as they are made available. MPIRE MEDIA will make these new versions available to the Client on a periodic basis.
7.2 The Services required to install new versions are not provided under Support and will be delivered on a chargeable basis at our prevailing rates.
7.3 Any Services associated with upgrading Customisations will be delivered on a chargeable basis unless those Customisations are covered by full or part maintenance.
8.1 MPIRE MEDIA agrees to indemnify, hold harmless and defend Client from and against any and all judgments, liabilities, damages, losses, expenses and costs (including, but not limited to, court costs and legal fees) incurred by Client and for which Client provides notice to MPIRE MEDIA within thirty (30) days of such claim which relate to the violation of any third party’s copyright or proprietary rights arising in the provision of Services or MPIRE MEDIA Products, except where such violation arises from MPIRE MEDIA’s reliance on Client’s instructions or specifications or where Client or its agents modify any aspect of the results of the Services, in which case Client shall indemnify MPIRE MEDIA.
8.2 In the event of any infringement or claimed infringement, Client’s sole remedy shall be that MPIRE MEDIA shall, in its sole discretion: (i) modify infringing materials to be non-infringing; (ii) obtain a license for Client to use the infringing materials; or (iii) subject to the limitation of liability provisions of this Agreement, provide monetary compensation to Client under this indemnity.
8.3 Client agrees to indemnify, hold harmless and defend MPIRE MEDIA from and against any and all judgments, liabilities, damages, losses, expenses and costs (including, but not limited to, court costs and legal fees) incurred by MPIRE MEDIA and for which MPIRE MEDIA provides notice to Client within thirty (30) days of such claim which relate to the violation of any third party’s copyright or proprietary rights arising in connection with the provision of Services where such violation arises from MPIRE MEDIA’s reliance on Client’s instructions or specifications or where Client or its agents modify any aspect of the results of the Services.
9 Limited Liability
9.1 To the full extent permitted by law, and subject to clause 9.2, the parties agree that neither party to this Agreement shall have any liability, obligation or responsibility, whether in contract, tort (including but not limited to negligence), under statute or on any other basis, for any indirect, consequential, special or exemplary damages, or damages for loss of profits or revenue, arising in connection with this Agreement, even if such the Client has been advised of the possibility of such damages.
9.2 Under the Trade Practices Act 1974 when implied conditions and warranties cannot be expressly excluded, MPIRE MEDIA limits its liabilities in the case of Services and Support, to the supplying of the Services and Support again, or the payment of the cost of having the Services and Support supplied again with such decision at the sole discretion of MPIRE MEDIA.
9.3 To the full extent permitted by applicable law, MPIRE MEDIA’s maximum aggregate liability for damages under or in relation to this Agreement or in tort (including negligence), shall not exceed the amount of the fees paid by Client to MPIRE MEDIA under this Agreement during the previous 12 month period in which such claim arises.
10 Intellectual Property
10.1 All rights in any intellectual property relating to the MPIRE MEDIA Products, Services, Support, Customisations and associated documentation, remain the property of MPIRE MEDIA.
10.2 Subject to 10.1 MPIRE MEDIA grants to the Client a non-exclusive, irrevocable, perpetual, licence to use the Intellectual Property Rights inherent in any Customisations or as a result of Services for its own internal purposes. Such purposes to not include the exploitation of the Intellectual Property referred to in this clause or the supply of the Intellectual Property to third parties.
11 Privacy Notice
11.1 MPIRE MEDIA will comply, and will ensure that all of its representatives comply with the Privacy Act 1988 in respect of all personal information collected, used, disclosed and otherwise handled by them under or in connection with this Agreement, .
11.2 Subject to the Privacy Act 1988, MPIRE MEDIA uses Client information to provide Client with information relating to MPIRE MEDIA or promotional details about products and services that may be of interest to Client, unless Client has previously advised MPIRE MEDIA not to be contacted for those purposes.
12.1 Each party to this Agreement (each, a “Recipient”) shall protect and keep confidential all non-public information disclosed by the other party (each a “Discloser”) and identified as confidential by the Discloser (“Confidential Information”), and shall not, except as may be authorised by Discloser in writing, use or disclose any such Confidential Information for a period of two (2) years from the Termination Date. Upon termination or expiration of this Agreement, Recipient shall return to Discloser all written materials which contain any Confidential Information. The obligations of confidentiality shall not apply to any information which: (i) was previously known to Recipient; (ii) is or becomes publicly available, through no fault of Recipient; (iii) is disclosed to Recipient by a third party having no obligation of confidentiality to Discloser; (iv) is independently developed by Recipient; or (v) is required to be disclosed as a matter of law.
12.2 Both parties acknowledge that any use or disclosure of the other party’s Confidential Information in a manner inconsistent with the provisions of the Agreement may cause the non-disclosing party irreparable damage for which remedies other than injunctive relief may be inadequate, and both parties agree that the non-disclosing party may request injunctive or other equitable relief seeking to restrain such use or disclosure.
13.1 Neither party shall be liable for delays caused by fire, accident, labour dispute, war, insurrection, riot, act of government, act of God, or any other cause reasonably beyond its control; but each party shall use all reasonable efforts to minimise the extent of any such delay. MPIRE MEDIA shall not be liable to Client (or Client’s customers) for any delay in performance or any failure in performance hereunder caused in whole or in part by reasons beyond the control of MPIRE MEDIA and resulting from Client’s failure to furnish in a timely manner information, equipment, or materials necessary to perform the Services.
14.1 The Client agrees not to hire or attempt to hire or directly contract employees or subcontractors of MPIRE MEDIA that have been directly or indirectly involved in providing Products, Services or Support during the term of this Agreement. In the event of such hiring or contracting the client agrees to pay MPIRE MEDIA the sum of $15,000 being a reasonable estimate of the cost of finding and recruiting a suitable replacement.
15 Independent Contractor Status
15.1 The parties hereto are independent contractors and nothing in this Agreement shall be deemed to create any form principal-agent relationship, employer-employee relationship, or joint venture between the parties hereto.
16.1 Changes to this Agreement need to be agreed in writing by both parties.
17.1 Neither party may assign its rights or obligations hereunder (except to subsidiaries or affiliates) without prior written consent of the other party, which consent will not be unreasonably withheld.
18 Governing Law
18.1 This Agreement will be governed by and is construed in accordance with the laws of Western Australia, without regard to its rules concerning conflicts of laws. The parties irrevocably submit to the exclusive jurisdiction of the courts Western Australia.
19.1 In witness whereof, the parties have caused this Agreement to be executed by their respective duly authorised officers as of the indicated date.