Meridian IT Pty Ltd
ABN 86 064 019 290
Licensed software supply
Licensed software support plans
Licensed software installation service
1 Definitions and interpretation
In this Agreement, unless the context otherwise requires:
Business Day means a day on which banks are open for retail banking business in Sydney, New South Wales other than a Saturday or Sunday.
Commencement Date means the date determined in accordance with clause 2.2.
Computer System means the Customer's existing computer system described in the relevant Quotation or Project Plan, in respect of which the Supplier will provide the Services (if applicable).
Confidential Information means in the case of each party, all of that party’s information which would reasonably be regarded as confidential, disclosed or made available to the other party before or after the Commencement Date, including information relating to its business, customers, suppliers, products, databases, services, strategies, or plans, but excluding information which:
CPI means the Consumer Price Index, Australia, All Groups, Weighted Average of Eight Capital Cities, published by the Australian Bureau of Statistics and, if that index ceases to be published, an alternative consumer price index nominated by the Supplier.
Customer means the company, person or other entity named as the customer in the Quotation.
Delivery Date means, in respect of any Hardware Product, the date scheduled for delivery of the Hardware Product as specified in the Quotation.
Documentation means any user manual or other operational documentation provided by (as applicable) the manufacturer of the Hardware Products or the licensor of the Licensed Software.
Price means the price payable by the Customer to the Supplier for provision of the Hardware Products and Services as specified in the Quotation and also includes any expenses payable by the Customer as required by the Quotation.
Force Majeure means a circumstance beyond the reasonable control of a party which results in the party being unable to observe or perform on time an obligation under this Agreement.
GST means GST within the meaning of A New Tax System (Goods and Services Tax) Act 1999 and related legislation (as amended).
Hardware Products means the particular computer hardware and related accessories (if any) described in the Quotation which the Supplier will supply to the Customer.
Implementation Service means the Hardware Products installation, connection and/or commissioning service (if any) described in the Quotation which the Supplier must supply to the Customer.
Insolvency Event means that:
Intellectual Property Rights means all statutory and other proprietary rights (including rights to require information be kept confidential) in respect of know-how, trade secrets, copyright, trademarks, designs, patents and all other rights as defined by Article 2 of the Convention establishing the World Intellectual Property Organisation of July 1967.
Invoice has the meaning given to it in clause 12.2(a).
Licensed Software means the third-party licensed software (if any) identified in the Quotation which the Supplier must supply to the Customer.
Licensed Software Installation Service means the Licensed Software installation service (if any) described in the Quotation which the Supplier must supply to the Customer.
Licensed Software Support Plan means a software support plan for Licensed Software (if any) as described in the Quotation which the Supplier must supply to the Customer.
Licensed Software License means the relevant end user license terms applicable to the Licensed Software.
Milestone Dates means, in respect of a specific task which is to be performed by the Supplier as part of the Services, the target date for the performance of the relevant task.
Project Plan means the document (developed by the Supplier where required by the Quotation) which specifies the services, materials and personnel to be contributed by each party and the responsibilities of each party relating to the Services to be provided under this Agreement. A Project Plan will only be developed where required by the Quotation.
Quotation means the written quotation, which has been accepted by the Customer, which describes (as applicable):
which are to be supplied by the Supplier to the Customer under this Agreement. The Quotation does not include any pre-sales information (including any proposal) which the Supplier may have provided to the Customer in connection with the Services and/or Hardware Products.
Related Bodies Corporate has the meaning provided by the Corporations Act 2001.
Service means, in respect of a Quotation, the Implementation Services, the Licensed Software Installation Services, the Training Services, procuring or supplying Licensed Software Licenses, procuring or supplying Licensed Software Support Plans and any other services which the Quotation requires the Supplier to provide to the Customer.
Site means the location at which the Hardware Products will be delivered and the Services will be provided (if applicable) as specified in the Quotation.
Supplier means Meridian IT Pty Ltd, ABN 86 064 019 290.
Taxes means all taxes, charges, duties and similar imposed by a government or statutory body relating to the supply or use of goods or services or otherwise arising out of this Agreement including sales tax, goods and services tax, value added tax, fringe benefits tax, undistributed profits tax, financial institutions duty, stamp duties and any interest or penalty imposed in connection with any of the preceding items but does not include income or capital gains tax.
Training Services means the training or related services (if any) described in the Quotation which the Supplier must supply to the Customer.
Term has the meaning provided by clause 3.
This Agreement is comprised of the following documents which apply in the following order of precedence:
with the result that any inconsistency between these documents will be resolved in favour of the earlier listed document.
Subject to clause 2.2, the Commencement Date is the date the Customer notifies the Supplier of its acceptance of the Quotation.
Where the Quotation is expressed to be subject to a third party’s acceptance or approval:
The Agreement commences on the Commencement Date and will continue until the parties have completed the performance of their obligations.
This clause 5 only applies if the Supplier is required by the Quotation to supply the Customer with any Hardware Products.
This clause 6 applies only if the Quotation requires the Supplier to provide the Customer with Implementation Services.
Unless otherwise expressly specified by the Quotation, the Customer is solely responsible for making the Site ready for the installation of the Hardware Products. Without limiting this clause, the Customer agrees that it is responsible for:
Unless expressly specified to the contrary in the Quotation, the Implementation Services do not include the following (or services relating to any of the following):
This clause 7 applies only if the Quotation requires the Supplier to supply the Customer with a Licensed Software License or a Licensed Software Support Plan.
Unless expressly specified to the contrary in the Quotation, the Licensed Software Installation Service does not include the following (or services relating to any of the following):
This clause 9 applies only if the Quotation requires the Supplier to supply the Customer with any Training Services.
10.2 Personnel, facilities and Site
The Customer must pay the Supplier the Price in accordance with this Agreement and the Quotation.
12.2 Invoice and payment
12.3 Out of scope services
Where the Supplier provides the Customer with services that are outside the scope of the services to be provided by the Supplier as set out in a Quotation, the Customer must pay the Supplier’s standard hourly rates for providing that service, which standard hourly rates will be as amended by the Supplier from time to time.
12.4 Disputed invoices
If the Customer wishes to dispute an Invoice it must:
before the due date for payment of the Invoice.
12.5 Default in payment
If the Customer fails to pay any amount payable under this Agreement by the due date then, except where the amount has been validly disputed pursuant to clause 12.4, the Supplier may (without prejudice to any other remedies to which it is entitled):
12.6 Other rights and obligations not affected
The exercise by the Supplier of any of the Supplier's rights under clause 12.5 does not affect:
under this Agreement or any other agreement between the Supplier and the Customer.
The Customer must pay the Supplier or reimburse the Supplier for any expenses which the Customer is required to pay or incur under the Quotation or otherwise under this Agreement in order to provide the Services or the Hardware Products.
13.1 Acknowledgment of confidentiality
Each party (Recipient) acknowledges that:
13.2 Obligation of confidentiality
The Recipient must (except as may be required by law or with the Discloser’s prior written consent):
13.3 Disclosure required by law
If the Recipient is required by law to disclose the Discloser’s Confidential Information:
The Recipient acknowledges and agrees that a breach of this Agreement may cause the Discloser to suffer loss, damage and expense for which damages may not be adequate compensation and may be difficult to ascertain and that the Discloser may immediately seek to restrain any actual or threatened breach of this Agreement by injunction or any similar remedy.
In this clause 14:
14.2 Consideration is GST exclusive
Unless otherwise expressly stated, all prices or other sums payable or Consideration to be provided under or in accordance with this Agreement are exclusive of GST.
14.3 Payment of GST
14.4 Reimbursement of expenses
If this Agreement requires a party (the First Party) to pay for, reimburse, set off or contribute to any expense, loss or outgoing (Reimbursable Expense) suffered or incurred by the other party (the Other Party), the amount required to be paid, reimbursed, set off or contributed by the First Party will be the sum of:
17.1 Exclusion of implied terms
Any representation, warranty, condition, guarantee or undertaking that would be implied in this Agreement by legislation, common law, equity, trade, custom or usage is excluded to the maximum extent permitted by law.
17.2 Non-excludable rights implied by statute
Nothing in this Agreement excludes, restricts or modifies any consumer guarantee, right or remedy conferred on the Customer by the Australian Consumer Law, Schedule 2 of the Competition and Consumer Act 2010 (Cth) or any other applicable law that cannot be excluded, restricted or modified by agreement.
17.3 Liability for breach of non-excludable rights
To the fullest extent permitted by law, the liability of the Supplier for a breach of a non-excludable guarantee referred to in clause 17.2 is limited, at the Supplier's option, to:
17.4 Survival of clause
Despite any other provision of this Agreement, this clause 17 survives the expiry or termination of this Agreement.
18.1 Limitation of liability
Subject to clause 17, the Supplier will be under no liability to the Customer or any other person in respect of:
18.2 Maximum liability
Subject to clause 17, the maximum aggregate liability of the Supplier for all proven losses, damages and claims arising out of this Agreement, including liability for breach, in negligence or in tort or for any other common law or statutory action, is limited to the sum of the amounts paid by the Customer to the Supplier under the Quotation in relation to the particular Service or Hardware Product which was responsible for or connected with the relevant loss, damage or claim.
18.3 No reliance on representations
The Customer will at all times indemnify and hold harmless the Supplier and its officers, employees and agents (“those indemnified”) from and against any loss, (including reasonable legal costs and expenses) or liability reasonably incurred or suffered by any of those indemnified arising from any proceedings against those indemnified where such loss or liability was caused by:
19.1 Termination by Supplier
Without limiting the generality of any other provision in this Agreement, the Supplier may suspend or terminate (or suspend then subsequently terminate) its provision of all or any of the Services under any Quotation and this Agreement immediately by notice in writing if:
19.2 Termination by Customer
The Customer may terminate this Agreement immediately by notice in writing if:
19.3 Consequences of termination
If a notice of termination is given to the Supplier under clause 19.1 or clause 19.2 or this Agreement all monies payable to the Supplier under this Agreement or which would have become payable but for that termination will, to the extent permitted by law, become immediately due and payable and:
(b) Prior to referring a matter to mediation under clause 26(a), the parties will:
Any provision of this Agreement which is invalid in any jurisdiction must, in relation to that jurisdiction:
without invalidating or affecting the remaining provisions of this Agreement or the validity of that provision in any other jurisdiction.
32.2 Further assurances
A party, at its own cost and within a reasonable time of being requested by another party to do so, must do all things and execute all documents which are reasonably necessary to give full effect to this Agreement.
32.3 No adverse construction
This Agreement is not to be construed to the disadvantage of a party because that party was responsible for its preparation.
32.4 No right of set-off
Unless this Agreement expressly provides otherwise, a party has no right of set-off against a payment due to another party.
If this Agreement consists of a number of counterparts, each is an original and all of the counterparts together constitute the same document.