This Agreement is entered into between Us and You, together the Parties and each a Party.
1. SUPPLY OF SERVICES
1.1 In consideration of your payment of the Fees, we will provide the Services in accordance with this Agreement, whether ourselves or through our Personnel.
1.2 If this Agreement expresses a time within which the Services are to be supplied, we will use reasonable endeavours to provide the Services by such time, but you agree that such time is an estimate only.
1.3 You acknowledge and agree that any information, advice, material or work provided by us as part of the Services does not constitute legal, financial, due diligence or risk management advice.
1.4 Third Party Products or Services: Where you engage third parties to operate alongside our Services (for example, any third-party software systems or hardware), those third parties are independent of us and you are responsible for (meaning we will not be liable for) the services that they provide, unless we expressly agree otherwise under a Statement of Work.
1.5 Variations and Additional Services: All variations or additions to the Services must be agreed in writing between the Parties and will be priced in accordance with any schedule of rates provided by us, or otherwise as reasonably agreed between the Parties. If we consider that any instructions or directions from you constitute a variation or addition to the scope of the Services or our obligations under this Agreement, then we will not be obliged to comply with such instructions or directions unless agreed in accordance with this clause.
1.6 Notwithstanding clause 1.5, you agree that we may vary the Services or the Fees at any time, by providing 30 days’ written notice to you (Variation Notice Period). If you do not agree to any amendment made to the Services or Fees, you may, before the end of the Variation Notice Period, terminate this Agreement by giving us 30 days’ notice in writing, in which case, the proposed variation will not come into effect and clause 10.4 will apply.
2. YOUR OBLIGATIONS
2.1 You agree to (and to the extent applicable, ensure that your Personnel agree to):
(a) comply with this Agreement, all applicable Laws, and our reasonable requests;
(b) provide us (and our Personnel) with access to any premises specified in a Statement of Work (and its facilities) and any other premises as is reasonably necessary for us to provide our Services, free from harm or risk to health or safety at the times and on the dates reasonably requested by us or as agreed between the Parties;
(c) provide us (and our Personnel) with access to your Systems as necessary for us to provide the Services;
(d) provide us with all documentation, information, instructions, cooperation and access reasonably necessary to enable us to provide our Services; and
(a) not (or not attempt to) disclose, or provide access to, our Services to third parties without our prior written consent.
2.2 You agree to pay our additional costs reasonably incurred as a result of you failing to comply with this clause 2.
3. STATEMENTS OF WORK
3.1 During the Term, you may request us to supply our Services by notifying us in writing or by any other process we specify (Supply Request).
3.2 We may, in our discretion, accept or reject a Supply Request. If we accept the Supply Request, we will provide you with a formal Statement of Work, and once the Statement of Work is agreed by both Parties in writing it will be binding in accordance with the terms of this Agreement and the Statement of Work.
3.3 Any services requested after the commencement of work outlined in the Statement of Work, which fall outside of the Statement of Work, will be charged at an hourly rate.
3.4 Each Statement of Work is subject to, and will be governed by, this Agreement and any other conditions expressly set out in the Statement of Work. To the extent of any ambiguity or discrepancy between a Statement of Work and this Agreement, the terms of the Agreement will prevail.
4. FEES AND PAYMENT
4.1 In consideration for us providing the Services, you agree to pay all amounts due under this Agreement in accordance with the Payment Terms.
4.2 If any payment has not been made in accordance with the Payment Terms, we may (at our absolute discretion, and without prejudice to any of our rights or remedies under this Agreement or at Law):
(a) after a period of 5 Business Days from the relevant due date, cease supplying our Services, and recover, as a debt due and immediately payable from you, our reasonable additional costs of doing so (including all recovery costs); and/or
(b) charge interest at a rate equal to the Reserve Bank of Australia’s cash rate, from time to time, plus 2% per annum, calculated daily and compounding monthly, on any such amounts unpaid after the relevant due date in accordance with the Payment Terms.
4.3 When applicable, GST payable will be clearly shown on our invoices. You agree to pay us an amount equivalent to the GST imposed on these charges. “GST”has the meaning given in A New Tax System (Goods and Services Tax) Act1999(Cth).
5. SUPPORT SERVICES
5.1 In order for you to receive the Support Services, you must place a request by email (Support Request). We agree to respond to any such Support Request in a timely manner, noting that we will respond to more urgent requests first (as determined by us at our sole discretion).
5.2 Where we have agreed to provide the Support Services on a fixed fee basis, you agree to the reasonable usage of the Support Services. Where we consider your usage of the Support Services to be unreasonable, or unreasonably above average (compared with our other clients):
(a) we agree to notify you in writing of our concerns;
(b) following your receipt of such notice, we and you will use all reasonable endeavours to work together to resolve the matter; and
(c) if the matter is unable to be resolved, we may (at our discretion):
(i) adjust our response time accordingly;
(ii) vary the Fees to reflect your increased use of our resources, effective on and from us giving you written notice of the new Fees; and/or
(iii) terminate the Statement of Work by giving 30 days’ notice in writing to you.
5.3 Where we determine an issue raised in a Support Request was caused by a third party and not us, we will perform any Support Services on an hourly rate basis
5.4 Where we have agreed to provide the Support Services for a fixed number of hours, we will record our time when providing the Support Services. If the time we spend on the Support Services is likely to exceed the hours of Support Services ordered by you in this Statement of Work, we will notify you. If you agree to proceed with additional Support Services, we will charge you for the additional services provided in excess of the agreed hours in accordance with the Statement of Work or the schedule of rates to be provided by us. These services will form part of the Support Services and any additional fees will form part of the Fees.
5.5 If we have agreed as part of the Statement of Work to send one of our Personnel to your Premises to provide on-site Support Services, you agree to co-ordinate, instruct and supervise our Personnel’s performance on the Support Services while they are on your Premises, and have adequate public liability insurance that covers loss or damage to property, and death or personal injury.
6. WARRANTIES AND REPRESENTATIONS
6.1 Each Party represents and warrants that:
(a) it has full legal capacity, right, authority and power to enter into this Agreement, to perform its obligations under this Agreement, and to carry on its business; and
(b) This Agreement constitutes a legal, valid and binding agreement, enforceable in accordance with its terms.
6.2 You represent and warrant that:
(a) all information and documentation that you provide to us in connection with this Agreement is true, correct and complete;
(b) no insolvency events (including but not limited to bankruptcy, receivership, voluntary administration, liquidation or creditors’ schemes of arrangement)affecting you or your property are occurring or are likely to occur; and
(c) if you enter into this Agreement as a trustee of a trust, then:
(1) you are the sole trustee of the relevant trust and have been validly appointed;
(2) you have full and valid power, authority, consents and approvals under the relevant trust to execute the Agreement and carry out the transactions contemplated by the Agreement; and
(3) you have the right to be indemnified out of the assets of the relevant trust for all liabilities incurred by you under the Agreement.
7. INTELLECTUAL PROPERTY
7.1 As between the Parties:
(a) we own all Intellectual Property Rights in Our Materials;
(b) you own all Intellectual Property Rights in Your Materials; and
(c) nothing in this Agreement constitutes a transfer or assignment of any Intellectual Property Rights in Our Materials or Your Materials.
7.2 As between the Parties, ownership of all Intellectual Property Rights in any New Materials will vest:
(a) where the New Materials are Deliverables that we have developed for you pursuant to a Statement of Work, in you after payment by you in full of the Fees relevant to those New Materials; and
(b) in all other cases, in us upon creation, and to the extent that ownership of such Intellectual Property Rights does not automatically vest in us, you hereby assign all such Intellectual Property Rights to us and agree to do all other things necessary to assure our title in such rights.
7.3 We grant you a non-exclusive, revocable, royalty-free, worldwide, non-sublicensable and non-transferable right and licence, for the duration of the Term, to use Our Materials that we provide to you solely for your use and enjoyment of our Services, as contemplated by this Agreement.
7.4 You grant us a non-exclusive, irrevocable, royalty-free, worldwide, non-sublicensable (other than to our related bodies corporate, as that term is defined in the Corporations Act 2001 (Cth)) and non-transferable right and licence to use Your Materials that you provide to us solely for the purpose of performing of our obligations or exercising our rights under this Agreement.
7.5 If you (if you are an individual) or any of your Personnel have any Moral Rights in any material provided, used or prepared in connection with this Agreement, you agree to (and will procure that your Personnel) consent to our use or infringement of those Moral Rights.
Your Data
7.6 We do not own any of Your Data, but when you provide us with Your Data, you grant us the right to access, analyse, back-up, copy, store, transmit and otherwise use Your Data during the Term (and for a reasonable period of time afterwards). We may use Your Data (or disclose it to third party service providers) to:
(a) supply the Services to you and your Personnel(for example, to enable you and your Personnel to access and use the Services),and otherwise perform our obligations under this Agreement;
(b) diagnose problems with the Services;
(c) improve and develop the Services; or
(d) perform analytics for the purpose of remedying bugs or issues with the Services.
7.7 You acknowledge and agree that because of the nature of the internet, the processing and transmission of Your Data by us may occur over various networks, and may be transferred unencrypted.
7.8 You are responsible for (meaning we are not liable for):
(a) the integrity of Your Data on your Systems;
(b) where Your Data includes Personal Information, ensuring that you have the right to collect and disclose such Personal Information to us in accordance with the Privacy Act 1988 (Cth)and other applicable Laws relating to privacy;
(c) unless otherwise agreed in a Statement of Work, backing up Your Data.
7.9 We may create anonymised statistical data from Your Data and usage of the Services (for example, through aggregation). Once anonymised, we own that data and may use it for our own purposes, such as to provide and improve the Services, to develop new services or product offerings, to identify business trends, and for other uses we communicate to you. This may include making such anonymised data publicly available, provided it is not compiled using a sample size small enough to make underlying portions of Your Data identifiable.
7.10 You acknowledge and agree that if you do not provide Your Data to us, it may impact your ability to receive the Services.
7.11 This clause 7 will survive termination or expiry of this Agreement.
8. CONFIDENTIAL INFORMATION
8.1 Each Receiving Party agrees:
(a) not to disclose the Confidential Information of the Disclosing Party to any third party (subject to subclause 8.1(c));
(b) to protect the Confidential Information of the Disclosing Party from any loss, damage or unauthorised disclosure;
(c) to only disclose the Confidential Information to those of its Personnel who need to know the Confidential Information in connection with this Agreement, provided those Personnel keep the Confidential Information confidential in accordance with this clause 8; and
(d) to only use the Confidential Information of the Disclosing Party for the purpose of performing obligations, or exercising rights or remedies, under this Agreement.
8.2 The obligations in clause 8.1 do not apply to Confidential Information that:
(a) is required to be disclosed for the Parties to comply with their obligations under this Agreement;
(b) is authorised in writing to be disclosed by the Disclosing Party;
(c) is in the public domain or is no longer confidential, except as a result of a breach of this Agreement or other duty of confidence; or (d) must be disclosed by Law or by a regulatory authority, including under subpoena, provided that (to the extent permitted by Law) the Receiving Party has given the Disclosing Party notice prior to disclosure.
8.3 Each Party agrees that monetary damages may not be an adequate remedy for a breach of this clause 8. A Party is entitled to seek an injunction, or any other remedy available at Law or in equity, at its discretion, to protect itself from a breach (or continuing breach) of this clause
8.4 This clause 8 will survive the termination of this Agreement.
9. AUSTRALIAN CONSUMER LAW
9.1 Certain legislation, including the Australian Consumer Law, and similar consumer protection laws and regulations, may confer you with rights, warranties, guarantees and remedies relating to the supply of our Services by us to you which cannot be excluded, restricted or modified (Consumer Law Rights). To the extent that you maintain Consumer Law Rights at Law, nothing in this Agreement excludes those Consumer Law Rights.
9.2 Subject to your Consumer Law Rights, we provide all material, work, goods and services (including our Services) to you without conditions or warranties of any kind, implied or otherwise, whether in statute, at Law or on any other basis, except where expressly set out in this Agreement.
9.3 This clause 9 will survive the termination or expiry of this Agreement.
10. LIABILITY
10.1 Despite clause 10.2, to the maximum extent permitted by Law, but subject to your Consumer Law Rights, you indemnify us from and against any Liability that we may suffer, incur or otherwise become liable for, arising from or in connection with:
(a) any official investigation or inquiry into you, your Personnel or your operations, by a regulatory authority under powers granted to it by Law (including without limitation, any legal costs we incur as a result, or any actual economic loss we suffer if our business is publicly associated with such an investigation or inquiry); and
(b) any Personal Information provided by you to us in breach of the Privacy Act 1988 (Cth) or other applicable Laws relating to privacy.
10.2 Despite anything to the contrary but subject to your Consumer Law Rights, to the maximum extent permitted by Law:
(a) neither Party will be liable for Consequential Loss;
(b) a Party’s liability for any Liability under this Agreement will be reduced proportionately to the extent the relevant Liability was caused or contributed to by the acts or omissions of the other Party (or any of its Personnel), including any failure by that other Party to mitigate its loss; and
(c) our aggregate liability for any Liability arising from or in connection with this Agreement will be limited to the Fees paid by you to us in respect of the supply of the relevant Services to which the Liability relates.
10.3 This clause 10 will survive the termination or expiry of this Agreement.
11. TERM AND TERMINATION
11.1 This Agreement will operate for the Term.
11.2 The Parties may terminate this Agreement by mutual agreement.
11.3 This Agreement will terminate immediately upon written notice by a Party (Non-Defaulting Party) if:
(a) the other Party (Defaulting Party) breaches a material term of this Agreement and that breach has not been remedied within 10 Business Days of the Defaulting Party being notified of the breach by the Non-Defaulting Party; or
(b) the Defaulting Party goes bankrupt, insolvent or is otherwise unable to pay its debts as they fall due.
11.4 Upon expiry or termination of this Agreement:
(a) without limiting and subject to your Consumer Law Rights, any payments made by you to us for Services already supplied are not refundable to you;
(b) you are to pay for all Services supplied prior to termination, including Services which have been supplied and have not yet been invoiced to you, and all other amounts due and payable under this Agreement;
(c) by us pursuant to clause 11.3, you also agree to pay us our additional costs, reasonably incurred, and which arise directly from such termination (including recovery fees); and
(d) we may retain your documents and information (including copies) to the extent required by Law or pursuant to any information technology back-up procedure, provided that we handle your information in accordance with clause 8.
11.5 Unless otherwise agreed between the Parties, if this Agreement is terminated:
(a) by us, then any current Statement of Work will also terminate on the date of termination and we will immediately cease supplying our Services; or
(b) by you, then any outstanding Statements of Work will continue in accordance with the terms of the Statement of Work (and this Agreement) until such time as the Statement of Work is complete or the Statement of Work is otherwise terminated in accordance with its terms.
11.6 Termination of this Agreement will not affect any rights or liabilities that a Party has accrued under it.
11.7 This clause 11 will survive the termination or expiry of this Agreement.
12. GENERAL
12.1 Amendment: Subject to clauses 1.5 and 1.6, this Agreement may only be amended by written instrument executed by the Parties.
12.2 Assignment: Subject to clauses 12.3 and 12.10, a Party must not assign, novate or deal with the whole or any part of its rights or obligations under this Agreement without the prior written consent of the other Party (such consent is not to be unreasonably withheld). 12.3 Assignment of Debt: You agree that we may assign or transfer any debt owed by you to us, arising under or in connection with this Agreement, to a debt collector, debt collection agency, or other third party.
12.4 Disputes: A Party may not commence court proceedings relating to any dispute, controversy or claim arising from, or in connection with, this Agreement (including any question regarding its existence, validity or termination) (Dispute) without first complying with this clause 12.4. A Party claiming that a Dispute has arisen must give written notice to the other Party specifying the nature of the Dispute (Dispute Notice). The Parties must meet (whether in person, by telephone or video conference) within 10 Business Days of service of the Dispute Notice to seek (in good faith) to resolve the Dispute.
If the Parties do not resolve the Dispute within 20 Business Days of the date the Dispute Notice was served (or such further period as agreed in writing by the Parties), either Party may:
(a) where you are resident or incorporated in Australia, refer the matter to mediation, administered by the Australian Disputes Centre, to be conducted in Sydney, New South Wales, in accordance with the Australian Disputes Centre Guidelines for Commercial Mediation.
(b) where you are not resident or incorporated in Australia, refer the matter to arbitration administered by the Australian Centre for International Commercial Arbitration, with such arbitration to be conducted in Sydney, New South Wales, before one arbitrator, in English and in accordance with the ACICA Arbitration Rules.
Nothing in this clause will operate to prevent a Party from seeking urgent injunctive or equitable relief from a court of appropriate jurisdiction.
12.5 Force Majeure: Neither Party will be liable for any delay or failure to perform their respective obligations under this Agreement if such delay or failure is caused or contributed to by a Force Majeure Event, provided that the Party seeking to rely on the benefit of this clause:(a) as soon as reasonably practical, notifies the other Party in writing details of the Force Majeure Event, and the extent to which it is unable to perform its obligations; and
(b) uses reasonable endeavours to minimise the duration and adverse consequences of the Force Majeure Event. Where the Force Majeure Event prevents a Party from performing a material obligation under this Agreement for a period in excess of 60 days, then the other Party may by notice terminate this Agreement, which will be effective immediately, unless otherwise stated in the notice. This clause will not apply to a Party’s obligation to pay any amount that is due and payable to the other Party under this Agreement.
12.6 Governing Law: This Agreement is governed by the laws of New South Wales. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in New South Wales and any courts entitled to hear appeals from those courts and waives any right to object to proceedings being brought in those courts.
12.7 Notices: Any notice given under this Agreement must be in writing addressed to the addresses set out in this Agreement, or the relevant address last notified by the recipient to the Parties in accordance with this clause. Any notice may be sent by standard post or email, and will be deemed to have been served on the expiry of 48 hours in the case of post, or at the time of transmission in the case of transmission by email.
12.8 Publicity: Despite clause 8, with your prior written consent, you agree that we may advertise or publicise the broad nature of our supply of our Services to you, including on our website or in our promotional material.
12.9 Relationship of Parties: This Agreement is not intended to create a partnership, joint venture, employment or agency relationship between the Parties.
12.10 Subcontracting: We may subcontract the supply of any part of our Services without your prior written consent. We agree that any subcontracting does not discharge us from any liability under this Agreement and that we are liable for the acts and omissions of our subcontractor.
13. DEFINITIONS
In this Agreement, unless the context otherwise requires, capitalised terms have the meanings given to them in the Schedule, and:
ACL or Australian Consumer Law means the Australian consumer laws set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth), as amended, from time to time.
Agreement means these terms and conditions and any agreed Statement of Work issued under it and any documents attached to, or referred to in, each of them.
Business Day means a day on which banks are open for general banking business in Sydney, New South Wales, excluding Saturdays, Sundays and public holidays.
Commencement Date means the date this Agreement is signed by the last of the Parties.
Confidential Information means information which:
(a) is disclosed to the Receiving Party in connection with this Agreement at any time;
(b) relates to the Disclosing Party’s business, assets or affairs; or
(c) relates to the subject matter of, the terms of and/or any transactions contemplated by this Agreement, whether or not such information or documentation is reduced to a tangible form or marked in writing as “confidential”, and howsoever the Receiving Party receives that information.
Consequential Loss includes any consequential loss, special or indirect loss, real or anticipated loss of profit, loss of benefit, loss of revenue, loss of business, loss of goodwill, loss of opportunity, loss of savings, loss of reputation, loss of use and/or loss or corruption of data, whether under statute, contract, equity, tort (including negligence), indemnity or otherwise. However, your obligation to pay us the Fees will not constitute “Consequential Loss”.
Consumer Law Rights has the meaning given in clause 9.1.
Deliverables means any materials, goods, items or other deliverables we have agreed to provide to you, as set out in each Statement of Work.
Disclosing Party means the Party disclosing Confidential Information to the Receiving Party.
Fees means the fees set out in each Statement of Work, as adjusted in accordance with this Agreement.
Force Majeure Event means any event or circumstance which is beyond a Party’s reasonable control including but not limited to, acts of God including fire, hurricane, typhoon, earthquake, landslide, tsunami, mudslide or other catastrophic natural disaster, civil riot, civil rebellion, revolution, terrorism, insurrection, militarily usurped power, act of sabotage, act of a public enemy, war (whether declared or not) or other like hostilities, ionising radiation, contamination by radioactivity, nuclear, chemical or biological contamination, any widespread illness, quarantine or government sanctioned ordinance or shutdown, pandemic (including COVID-19 and any variations or mutations to this disease or illness) or epidemic.
Intellectual Property Rights or Intellectual Property means any and all existing and future rights throughout the world conferred by statute, common law, equity or any corresponding law in relation to any copyright, designs, patents or trademarks, domain names, know-how, inventions, processes, trade secrets or confidential information, circuit layouts, software, computer programs, databases or source codes, including any application, or right to apply, for registration of, and any improvements, enhancements or modifications of, the foregoing, whether or not registered or registrable.
Law means all applicable laws, regulations, codes, guidelines, policies, protocols, consents, approvals, permits and licences, and any requirements or directions given by any government or similar authority with the power to bind or impose obligations on the relevant Party in connection with this Agreement or the supply of our Services.
Liability means any expense, cost, liability, loss, damage, claim, notice, entitlement, investigation, demand, proceeding or judgment (whether under statute, contract, equity, tort (including negligence), indemnity or otherwise), howsoever arising, whether direct or indirect and/or whether present, unascertained, future or contingent and whether involving a third party or a Party to thisAgreement or otherwise.
Moral Rights has the meaning given in the Copyright Act 1968(Cth) and includes any similar rights in any jurisdiction in the world.
New Materials means all Intellectual Property developed, adapted, modified or created by or on behalf of us or you or any of your or our respective Personnel in connection with this Agreement or the supply of our Services, whether before or after the date of this Agreement and any improvements, modifications or enhancements of such Intellectual Property, but excludes Our Materials and Your Materials.
Our Materials means all Intellectual Property which is owned by or licensed to us and any improvements, modifications or enhancements of such Intellectual Property, but excludes New Materials and Your Materials.
Personal Information means any information or opinion about an identified individual, or an individual who is reasonably identifiable, whether the information or opinion is true or not, and whether the information or opinion is recorded in a tangible form or not.
Personnel means, in respect of a Party, any of its employees, consultants, suppliers, subcontractors or agents, but in respect of you, does not include us.
Receiving Party means the Party receiving Confidential Information from or on behalf of the Disclosing Party.
Schedule means the schedule to this Agreement.
Services means the services set out in each Statement of Work, as adjusted in accordance with this Agreement.
Statement of Work means a statement of work for the supply of our Services, placed in accordance with clause 3, which will be issued separately to this Agreement.
Systems means all hardware, software, networks, telecommunications and other information technology systems used by a Party from time-to-time.
We, Us or Our means Charter Intelligence Pty Ltd dba STACK.aero (ACN 163 552 529)
You or Your means the company or other legal entity that is entering into this Agreement with Us.
Your Data means the information or data supplied by you and your Personnel when receiving the Services, or stored or generated by your use of the Services, including any Personal Information collected, used, disclosed, stored or otherwise handled in connection with the Services. Your Data does not include any data or information that is generated as a result of your usage of the Services that is a back-end or internal output or an output otherwise generally not available to users of the Services.
Your Materials means all Intellectual Property owned or licensed by you or your Personnel before the Commencement Date (which is not connected to this Agreement) and/or developed by or on behalf of you or your Personnel independently of this Agreement and any improvements, modifications or enhancements of such Intellectual Property, but excludes Our Materials and New Materials.
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