Platformers Standard Terms
Introduction
Platformers is a services provider of best-of-breed industry based cloud platforms and mobile apps. This agreement covers the provision of high priority service and support to Customers. This involves establishing regular contacts between Platformers and its Customers, ensuring that high priority is assigned to the tickets that matter to Customers.
In addition, Platformers will provide services as referenced in individual proposals issued to Customers from time to time. Platforms are intended to provide a full end-to-end workflow for Customers personnel and trades who use the platforms to create operations compliance checklists and other operational required forms.
Definitions and interpretation
In this Agreement:
Agreement means the signed sales proposal, these Standard Terms, the special conditions specified in the proposal, the schedules and any attachments.
Business Day means a day which is not a Saturday, Sunday or public holiday in Melbourne, Victoria, Australia
Claim means a claim, action, demand, damage, loss, liability, cost, charge, expense (including legal costs on a full indemnity basis), outgoing, fine or payment.
Commencement Date means the date specified on the proposal as being the date from which this Agreement takes effect, or if no such date is specified, the date on which this Agreement is executed by both parties which can also be taken to be the Subscription Period.
Confidential Information in relation to a party means information of a confidential nature including information about its business, operations, strategy, administration, technology, affairs, clients, customers, employees, contractors or suppliers, but does not include any information which is in the public domain other than through a breach of confidence.
Consequential Loss means any loss of profits, loss of revenue, loss of any contract value, loss of anticipated profit or damages for lost opportunity.
Customer means a corporate entity which has entered into this agreement with Platformers for the supply of Services, Subscription Services and/or which pays User(s) Subscription Fees on behalf of a User(s);
Cover Page means the cover page attached to these Standard Terms.
Defects means any failure of the Licensed Software, Service or Deliverable to comply with its Specifications.
Deliverables means all things, materials, documents, information and items developed by or on behalf of Platformers or its Personnel in the course of or in connection with the supply of the Software and Services in any form whatsoever (including electronic form) and includes all inventions, models, drawings, plans, artwork, designs, logos, reports, advices, proposals and records.
Delivery Date means any date and time for delivery of the Software, Services or Deliverables as stated in Schedule 1 or as otherwise advised by the Customer from time to time.
Develop means, in connection with a thing, to develop, create, add, enhance, reduce, adapt or prepare derivative works based on that thing.
Developed Software means any Software and related Documentation which is Developed by Platformers, as indicated in any sales materials and further described in any sales proposals, and includes any customisations, configurations or other modifications of any Licensed Software and any related Documentation.
Discloser has the meaning given in clause 16.1.
Documentation means any Consultation manuals, user manuals, operating manuals, technical manuals, provided by Platformers to the Customer as part of the Services.
Fees mean the amounts payable by the Customer under this Agreement for the Software, Services or Deliverables (as applicable), calculated in accordance with the sales proposal or the monthly invoice for Subscription Fees.
Force Majeure means an unforeseeable event or circumstance beyond the reasonable control of a party including:
(a) an act of God, lightning strike, meteor strike, earthquake, storm, flood, landslide, explosion or fire;
(b) strikes or other industrial action, other than strikes or other industrial action of some or all of Platformers’ Personnel; and
(c) war, terrorism, sabotage, blockade, revolution, riot, insurrection, civil commotion or epidemic,
but excludes any act or omission of a subcontractor (except where that act or omission was caused by a Force Majeure).
Free Services means the services available for free on the Website if you register with Platformers, Free trials offered by Platformers or any Free Services offered by Platformers from time to time;
GST means a goods and services tax, or a similar value added tax, levied or imposed under the GST Law.
GST Law has the meaning given in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
ICT Consultancy Services means the ICT consultancy services as indicated on the Cover Page and further described in the sales proposal.
Insolvency Event means the occurrence of any event of insolvency including a winding up application being made and not withdrawn within 21 days, a failure to comply with a statutory demand, the appointment of a provisional liquidator or administrator, the entering into of an arrangement with creditors, a voluntary winding up other than for the purpose of a bona fide corporate reconstruction, any inability to pay debts as and when they fall due, any admission of insolvency, any court order relating to any of the above or anything which occurs under the law of any jurisdiction which has a similar effect to any of the above.
Intellectual Property Rights means all present and future rights in relation to copyright, trade marks, designs, patents, semiconductor and circuit layout rights, trade, business, company and domain names, confidential and other proprietary rights, and any other rights to registration of such rights whether created before or after the date of this Agreement, and whether in Australia or otherwise.
Key Personnel means Platformers’ Personnel specified in the sales proposal.
Law means any applicable statute, regulation, by-law, ordinance, policy or subordinate legislation in force from time to time in Australia, whether made by a State, Territory, the Commonwealth or a local government, and includes the common law and equity as applicable from time to time, and any mandatory standards or industry codes of conduct.
Licence Term means, with respect to any particular Software, the licence term specified in the sales proposal.
Licensed Software means any software and related Documentation licensed to Platformers by a third party which is:
(a) in existence prior to the date of this Agreement; or
(b) Developed or comes into existence otherwise than pursuant to this Agreement.
Moral Rights means the moral rights granted under the Copyright Act 1968 (Cth), including the right of attribution of authorship, the right not to have authorship falsely attributed and the right of integrity of authorship, and any similar rights existing under foreign laws.
Moral Rights Consent means a waiver of Moral Rights to the extent permitted by law and unconditional consent to any act or omission in relation to the Deliverables and Developed Software (if any) by or on behalf of Platformers, or any licensee or subsequent owner of copyright in the Deliverables and Developed Software (if any).
Notice has the meaning given in clause 28.1.
Personal Information means information or an opinion (including information or an opinion forming part of a database) whether true or not, and whether recorded in material form or not, about an individual whose identity is apparent, or can be reasonably ascertained, from the information or opinion.
Personnel means a party’s officers, employees, secondees, agents, consultants, contractors and subcontractors, and, in the case of Platformers, includes Key Personnel.
Platform means and is interchangeable with Licensed Software
Pre-Existing IPR means any Intellectual Property Rights of a party which existed prior to the execution of this Agreement or which comes into existence after the execution of this Agreement independently.
Pre-Existing Materials means all things, materials, documents, information and items developed by or on behalf of Platformers or Customer independently of this Agreement but excludes the Software.
Premises means premises owned, leased or otherwise occupied by the Customer.
Priority Levels means the priority levels for the Software Support Services agreed in the sales proposal and published at https://hub.sanspaper.com/support-plan.
Recipient has the meaning given in clause 16.1.
Customer Data means:
(a) data owned or supplied by the Customer to which Platformers is provided access under this Agreement; or
(b) data generated, compiled, arranged or developed by either party in the course of providing or receiving the Software, Services or Deliverables under this Agreement.
Sales proposal means any proposal presented by a Platformers sales person and signed by a representative of the Customer.
Security Interest means any interest or right which secures the payment of a debt or other monetary obligation or the compliance with any other obligation including any retention of title to any property and any right to set off or withhold payment of any deposit or other money.
Service Levels means:
(a) in respect of the Software Support Services, the service levels set out in sales proposal; and
(b) in respect of the Services (other than the Software Support Services), the service levels specified in https://hub.sanspaper.com/support-plan.
Services means the services to be provided by Platformers under this Agreement and may include (as applicable) the Platform Support Services, Software Installation Services and ICT Consultancy Services, Software Subscriptions, Free Services and/or the Subscription Services and/or Publications, as the context requires.
Site means any site or Premises for delivery of the Licensed Software, Services, and Deliverables as specified in the sales proposal or as advised by the Customer from time to time.
Specifications means:
(a) in respect of Licensed Software, Services, and Deliverables, the requirements set out or referred to in Schedule 1, including all agreed requirements as to quality, functionality, performance, interoperability, testing and other matters;
(b) in respect of the Software, includes:
(i) all Documentation relating to the Software; and
(ii) any published specifications of Platformers or a third-party manufacturer or supplier relating to the Software.
Standard Terms means these standard terms.
Subscription Period means the period for which you agree to receive the Subscription Services;
Subscription Fees means the fees payable by you, or on your behalf, if you subscribe to the Subscription Services;
Support and Maintenance refers to the support levels (Gold, Silver, or Bronze) as described https://hub.sanspaper.com/support-plan.
Taxes means all taxes, levies, rates, charges, imposts of any kind whatsoever, including withholding tax.
Third-Party Programs means third party software programs or components.
Tax Invoice has the meaning given in the GST Law.
Taxable Supply has the meaning given in the GST Law.
Term means the term of this Agreement specified in the sales proposal or if no term specifically identified, to be taken as the month under which the Services have been active and remain active.
User(s) means (a) user(s) of the Website or Services either collectively or individually, as the context requires;
1. Interpretation
1.1 This Agreement, the following rules of interpretation apply unless the contrary intention appears:
(a) headings are for convenience only and do not affect the interpretation of this Agreement;
(b) the singular includes the plural and vice versa;
(c) words that are gender neutral or gender specific include each gender;
(d) where a word or phrase is given a particular meaning, other parts of speech and grammatical forms of that word or phrase have corresponding meanings;
(e) “includes” means without limitation;
(f) a reference to:
(i) a person includes a natural person, partnership, joint venture, government agency, association, corporation or other body corporate;
(ii) a party includes its successors and permitted assigns;
(iii) a document includes all amendments or supplements to that document;
(iv) a clause, term, party, schedule or attachment is a reference to a clause or term of, or party, schedule or attachment to this Agreement;
(v) this Agreement includes all schedules and attachments to it;
(vi) an agreement other than this Agreement includes an undertaking, or legally enforceable arrangement or understanding, whether or not in writing; and
a monetary amount is in Australian dollars;
(g) an agreement on the part of two or more persons binds them jointly and severally;
(h) when the day on which something must be done is not a Business Day, that thing must be done on the following Business Day; and
(i) no rule of construction applies to the disadvantage of a party because that party was responsible for the preparation of this Agreement or any part of it.
2. Term
2.1 This Agreement commences on the Commencement Date and continues for the Term unless terminated earlier in accordance with this Agreement.
2.2 The Customer may extend the Term for the period specified on the Cover Page (if any) by giving written notice of the extension to Platformers prior to the expiry of the then current term subject to Platformers acceptance of the extension in writing.
3. Supply of Licensed Software, Services, and Deliverables
3.1 Platformers must supply the Licensed Software, Services, and Deliverables:
(a) at the Site(s) identified;
(b) on or before the Delivery Date;
(c) in accordance with their Specifications;
(d) in accordance with all applicable Laws and standards; and
(e) using any identified Key Personnel.
3.2 Platformers must supply the Documentation or information required to enable the Customer to Use the Software and Services.
4. Warranties
4.1 Platformers warrants, and it is a condition of this Agreement, that:
(a) The Licenced Software and Deliverables will:
(i) be free from Defects, and errors or omissions in design, materials and workmanship;
(ii) comply with their Specifications and meet the requirements of this Agreement;
(iii) be of good and merchantable quality; and
(iv) be fit for the purpose for which they are supplied;
subject to the Licensed Software being a Third-Party Program in accordance with clause 4.2.
(b) all Services will:
(i) be performed with due care and skill, in a professional, efficient and safe manner, and to best industry standards;
(ii) be performed by suitably qualified and experienced Personnel;
(iii) meet or exceed the Service Levels;
(c) all Documentation will:
(i) contain sufficient information to enable the Customer to make full and proper Use of the relevant Software and Services;
(ii) be reasonably acceptable to the Customer in terms of its presentation, accuracy and scope; and
(iii) include the most current and up-to-date versions of documentation available;
(d) it will do all acts, matters and things that may be necessary for and incidental to the proper and efficient supply of the Licenced Software, Services and Deliverables;
(e) it will ensure that the supply of the Licenced Software, Services and Deliverables; at the Site causes as little disruption as possible to the business activities of the Customer;
(f) it will ensure that the Customer will obtain the benefit of all warranties given by all manufacturers, subcontractors, suppliers and other relevant third parties in relation to the Licenced Software, Services and Deliverables;
(g) the supply of any Licenced Software, Services and Deliverables, and the use of the Licenced Software, Services and Deliverables; does not and will not:
(i) contravene any Laws; and
(i) infringe the rights of a third party (including any Intellectual Property Rights and Moral Rights);
(h) it and its Personnel will supply the Services and Deliverables in a good, proper and workmanlike manner and will exercise the standard of care, skill, judgment and diligence reasonably expected of a contractor experienced in the supply of the same or similar Licensed Software, Services, and Deliverables;
(i) it will comply, and will ensure that its Personnel comply with all Laws and standards relating to the supply of the Licenced Software, Services and Deliverables, including the Customer’s standards, policies, procedures and directions, and obtain all necessary consents and approvals to supply the Licenced Software, Services and Deliverables;
4.2 Notwithstanding any other term in this Agreement, the Customer agrees:
(a) that Licensed Software, Services, and Deliverables may be delivered with Third-Party Programs. The Customer agrees that Platformers does not have any control over the availability or performance of Third-Party Programs and that unavailability or interruption of Third-Party Programs may result in the delayed completion or interruption of the Services provided to the Client. Platformers, without limiting any term in this Agreement, will not be liable to the Customer whether in contract, tort, because of negligence or otherwise for any direct, indirect, consequential, special, incidental or exemplary damages arising including any Claims or losses from or related to the Customer’s use or distribution of the Third-Party Programs. Platformers disclaims: (a) all representations and warranties express, implied or statutory with respect to all such Third-Party Programs including without limitation any warranties, fitness for a purpose, system integration, data accuracy, title, non-infringement; and (b) responsibility for the failure of Third-Party Program components;
(b) Platformers does not warrant that:
(i) the Services will meet all of the Customer ’s requirements;
(ii) the use of the Services will be error or virus free, uninterrupted or that any updates or new releases through the Services will not degrade the functionality of any of the Customer ’s existing systems;
(iii) technical support will be performed error-free or uninterrupted; or that
(iv) Platformers will correct all faults, defects, and errors.
(c) while Platformers will take all reasonable measures to keep data safer, the Customer accepts that no method of transmission over the Internet and storage of data is 100% secure and will be limited by technical capabilities as they exist at the time and as provided by any Third-Party Programs. Platformers does not guarantee or warrant the absolute privacy or security of any data, that data will not be compromised or 100% uptime or accessibility to data. Platformers accepts no responsibility for lost, missing or corrupted data caused by viruses, worms, trojan horses, unauthorized user activity (e.g., hacking) and the like. To the extent permitted by Law, Platformers excludes liability for any loss or Claims for any loss or corruption of data no matter how caused;
(d) that it has made appropriate investigations into its systems and the software required to support its use of our Services and acknowledge that use of the Services may vary with equipment and any other telecommunications links, products, or services with which it is used.
4.3 If there is any conflict between clause 4.2 and any other term of this agreement, then clause 4.2 will prevail.
4.4 This clause will survive the termination or end of this agreement.
5. Service Levels
5.1 Platformers must perform the Services and, if applicable, provide the Software, to meet or exceed any applicable Service Levels.
6. Other Supplier obligations
Platformers must, where Platformers is required to provide or utilise tools, equipment and vehicles, ensure such tools, equipment and vehicles are suitable for the supply of the Services and Deliverables and are maintained in good and safe working condition.
7. Supplier’s Personnel
7.1 Platformers must ensure that its Personnel:
(a) are competent and have all necessary and appropriate skills, Consultation, background and valid qualifications to carry out the duties and responsibilities of their positions and the tasks allocated to them;
(b) behave in a professional and responsible manner at all times and perform the Services with due care and skill and in accordance with best industry practice;
(c) understand and agree to the requirements of this Agreement which are relevant to them; and
(d) when accessing the Site(s), comply with any security, occupational health and safety and other policies and procedures specified by the Customer from time to time.
7.2 Platformers’ Personnel are employees or contractors of Platformers and are not employees or contractors of the Customer. Platformers is solely responsible for all of its Personnel and must comply with any Laws relating to the employment of its Personnel, including superannuation requirements, payment of tax instalment deductions and all Taxes including fringe benefits and payroll tax registration requirements, conditions on payment of wages, requirements to maintain records and payment of all remuneration (including salaries, wages, leave entitlements, superannuation and all other benefits).
7.3 Platformers and its Personnel have no claim upon the Customer in respect of:
(a) remuneration to Platformers’ Personnel including superannuation, leave, other entitlements, Taxes or duties;
(b) claims under workers’ compensation; and
(c) claims under any other law affecting or relating to the relationship between an employer and employee.
8. Key Personnel
8.1 Subject to clause 7.1, Platformers must engage the Key Personnel to perform the roles allocated to them in Schedule 1.
9. Non-solicitation
9.1 Either party must not, without the prior written consent of either party, during and for 12 months after the expiry or termination of this Agreement, directly or indirectly engage, employ or seek to engage or employ any person who was an employee of or engaged by either party and who was involved in the provision of the Services under this Agreement.
10. Consultation
Where specified in Schedule 1, Platformers must provide Consultation to the Customer and the cost of that Consultation will form part of the Fees if agreed by Platformers in writing.
11. Risk
Risk in any Deliverables passes from Platformers to the Customer upon the earlier of:
(a) the Customer notifying Platformers that the Deliverables have passed any required testing; or
(b) if no testing is required, at the time that the Customer accepts delivery of the Deliverables.
The Deliverables will be deemed accepted within fourteen (14) days of delivery to the Customer with risk in the Deliverables passing to the Customer unless the Customer notifies Platformers in writing with full particulars of the Deliverables not conforming to the required testing.
12. Invoicing and payment
12.1 Platformers may invoice the Customer for the Fees:
(a) at the time, and upon achievement of the milestones (if applicable), set out in Schedule 1;
12.2 The Fees are inclusive of all costs and expenses incurred by Platformers and no further amounts are payable by the Customer unless otherwise agreed in writing by the parties.
12.3 Subject to clauses 12.4 and 13, the Customer will pay any correctly rendered undisputed invoice issued by Platformers within 7 days from the date of receipt of that invoice.
12.4 An invoice is correctly rendered if:
(a) the amount claimed in the invoice is due for payment in accordance with Schedule 1;
(b) it is accompanied by verifying documentation, if required by the Customer ;
(c) Platformers has complied with its obligations under this Agreement as at the date of the invoice; and
(d) the invoice is a Tax Invoice in the proper form for the purposes of GST.
12.5 If any part of any invoice is found to have been rendered incorrectly after payment has been made by the Customer , then to the extent that it has been incorrectly rendered, any underpayment or overpayment will be recoverable by or from Platformers, as the case may be.
12.6 Without limiting recourse to other available means, any overpayments by the Customer may be offset against any amount subsequently due by the Customer to Platformers.
13. Disputed invoices
13.1 If the Customer disputes the amount of any invoice, the Customer may, on written notice to Platformers, withhold or suspend payment of any disputed part of the invoice until the dispute is resolved.
13.2 Platformers must continue to perform Platformers’ obligations under this Agreement in the event of a dispute about an invoice, while that dispute is resolved.
13.3 The Customer must:
(a) pay any non-disputed amounts in accordance with clause 13 and
(b) promptly pay any disputed amounts that are subsequently found to be correctly payable.
14. GST
The Fees are inclusive of all Taxes other than GST. If any supply under this Agreement is a Taxable Supply, then the party making the supply may, at the same time that an invoice is rendered for the agreed consideration for the Taxable Supply, recover the amount of GST payable on that Taxable Supply, subject to the issue of a valid Tax Invoice.
15. Intellectual Property
15.1 Licence to Use Software
(a) Except as otherwise set out in this Agreement, all Intellectual Property Rights in the Licensed Software remain vested in Platformers or its licensors.
(b) Where Platformers supplies the Customer with any Licensed Software, Platformers grants (and/or must procure the grant) to the Customer , at no additional cost to the Customer, a non-exclusive, perpetual, irrevocable, royalty free licence to:
(i) Use the Licensed Software (as applicable) during the Licence Term for the business purposes of the Customer in accordance with the class of licence set out in Schedule 1; and
(ii) make as many copies of the Licensed Software as the Customer considers necessary to make full Use of the Licensed Software or for backup and security purposes.
(c) the Customer acknowledges that it has no right, title or interest in the Licensed Software except as set out in this clause 15.1.
15.2 Restrictions on Use
(a) The Customer must comply with any restrictions on the Use of the Licensed Software
(b) Except as otherwise permitted under this Agreement, the Customer must not:
(i) sell, lease, transfer, assign, sub-license, licence or otherwise part with possession of any Licensed Software;
(ii) attempt to disassemble, decompile or otherwise reverse engineer any Licensed Software, except as permitted under the Copyright Act 1968 (Cth); or
(iii) remove, obliterate or alter any proprietary notice on any Licensed Software.
15.3 Pre-Existing Material
(a) Each party retains ownership of Pre-Existing IPR and nothing in this Agreement transfers ownership or any Intellectual Property Rights in Pre-Existing IPR of a party to the other party. No change in ownership of the Intellectual Property Rights in any Pre-Existing Materials of either party is affected by this Agreement
(b) the Customer grants to Platformers a non-exclusive, non-transferrable, royalty free licence for the Term to use the Customer’s Pre-Existing Materials only to the extent required to provide the Software and Services to the Customer, without the right to grant a further sub-licence.
16. Confidentiality
16.1 Each party must keep confidential, and not disclose any Confidential Information of the other party:
Each party may disclose Confidential Information:
(a) as permitted under this Agreement;
(b) with the prior written consent of the Discloser;
(c) to other persons
(i) who are aware and agree that the Confidential Information of the other party must be kept confidential and will enter into a confidentiality deed with terms the same as contained in clause 19.
(ii) on a confidential, “needs to know” basis, to the Recipient’s officers, agents, professional advisers, auditors, employees, contractors, sub-contractors and insurers;
(d) where the Recipient is compelled to do so by Law, provided that it gives the other party written notice prior to disclosure.
16.2 The Recipient must only use the Confidential Information of the Discloser for the purpose for which it was disclosed and in connection with this Agreement.
The Recipient must:
(a) maintain effective security measures to protect all Confidential Information in the possession or control of the Recipient from unauthorised access, use, copying or disclosure;
(b) notify the Discloser immediately in writing if the Recipient becomes aware of any anticipated, suspected or actual breach of this Agreement by the Recipient and take all reasonable steps required to prevent or stop that breach, at the Recipient’s expense; and
(c) reasonably assist the Discloser in connection with any action or investigation by the Discloser regarding any anticipated, suspected or actual unauthorised disclosure or misuse of Confidential Information by the Recipient.
16.4 Upon request from the Customer , Platformers must procure its Personnel that are engaged in the performance of this Agreement to execute a confidentiality undertaking, agreement or deed in the form acceptable to the Customer.
17. Privacy
Platformers must ensure that Personal Information is protected against loss and against unauthorised access, use, modification, disclosure or other misuse; Platformers must:
(a) not use Personal Information other than for the purpose of performing its obligations under this Agreement, unless required or authorised by Law;
(b) not disclose Personal Information without the prior written consent of the Customer , unless required or authorised by Law or for the purpose of performing its obligations under this Agreement;
(c) not transfer any Personal Information outside of Australia without the prior written consent of the Customer;
(d) ensure that access to Personal Information is restricted to those of its Personnel who require access in order to perform their duties under this Agreement;
(e) ensure that its officers and Personnel are aware of Platformers’ obligations under this clause 17 and comply with the same obligations imposed on Platformers under this clause;
(f) fully cooperate with the Customer to enable the Customer to respond to applications for access to, or amendment of, a document containing a person’s Personal Information and privacy complaints;
(g) immediately notify the Customer if Platformers becomes aware that a disclosure of Personal Information is or may be required or authorised by Law; and
(h) comply with such other privacy and security measures as the Customer reasonably advises Platformers in writing from time to time.
17.2 Platformers must immediately notify the Customer upon becoming aware of a breach of this clause 17.
17.3 Nothing in this clause 17 is intended to limit any obligation of Platformers under the Privacy Act (1988) or the Australian Privacy Principles.
18. Indemnity
Each party indemnifies the other party,
its officers, employees and agents (Indemnified Parties) from and against any Claim which any of the Indemnified Parties pays, suffers, incurs or is liable for arising out of or in connection with:
(a) any breach of this Agreement by the other party;
(b) the death or personal injury of any person;
(c) loss of, or damage to, any property;
(d) any breach of Law;
(d) any infringement, or alleged infringement of a third party’s rights (including Intellectual Property Rights and Moral Rights); and
(f) any act or omission of fraud, dishonesty, reckless or wilful misconduct or misrepresentation,
to the extent caused or contributed to by any act or omission of a party or its Personnel.
19. Liability
19.1 Neither party will be liable to the other party for any Consequential Loss suffered or incurred by the other party arising out of or in connection with this Agreement, whether arising under contract, in tort (including negligence) or otherwise.
19.3 To the maximum extent permitted by Law, a party’s maximum aggregate liability to the other party (whether under contract, tort, statute or in equity) arising out of or in connection with this Agreement is limited to the total amount of the Fees paid and payable under this Agreement.
20. Variations
20.1 the Customer may by written notice to Platformers request Platformers to vary the scope of the Software, Services or Deliverables to be supplied under this Agreement (Variation Notice).
20.2 Within 5 Business Days of receiving a Variation Notice, Platformers will provide to the Customer a reasonable written quotation (Variation Quotation) which details:
(a) the variation as requested by the Variation Notice;
(b) a reasonable variation (if any) to the Fees including evidence justifying the variation; and
(c) all relevant Specifications, time frames and operational requirements relating to the varied Licensed Software, Services, and Deliverables additional to but not inconsistent with those in the Variation Notice.
20.3 the Customer may by written notice to Platformers:
(a) accept the Variation Quotation within 10 Business Days of receiving it;
(b) reject the Variation Quotation at any time if that Variation Quotation has not already been accepted; or
(c) require Platformers to do the work as set out in the Variation Notice in a reasonable time as agreed by the parties for:
(i) fees based on the Fees specified in Schedule 1;
(ii) if clause 20.3(c)(i) is not applicable, fees based on the rates usually charged by Platformers in the ordinary course of its business; or
(iii) if neither clause 22.3(c)(i) nor 22.3(c)(ii) is applicable, reasonable fees having regard to the reasonable cost to Platformers of effecting the variation.
20.4 the Customer is not required to pay any additional fees unless and until:
(a) the Customer accepts the Variation Quotation under clause 20.3(a);
(b) the Customer requires Platformers to effect the variation under clause 22.3(c); or
(c) the parties otherwise agree in writing to the varied terms and fees.
21. Force Majeure
21.1 Delay in or failure of performance by a party does not constitute a breach of this Agreement by that party if and to the extent that the delay or failure is caused by a Force Majeure, provided the party claiming Force Majeure:
(a) gives notice to the other party within [7] days of the occurrence of the Force Majeure providing details of the Force Majeure and its anticipated likely duration and effect;
(b) continues to perform all unaffected obligations in accordance with this Agreement;
(c) uses its best endeavours to perform the affected obligations, whether by way of a Work-Around or other methods agreed with the other party;
(d) use reasonable endeavours to overcome the effects of the Force Majeure as promptly as possible and gives written notice to the other party within [7] days of the cessation of the Force Majeure.
21.2 Platformers will not be relieved from the performance of its obligations under this Agreement following the occurrence of a Force Majeure Event if such obligations could have been performed by invoking disaster recovery procedures reasonably expected of a supplier of goods and services similar to the Software or Services.
21.3 If a delay caused by Force Majeure continues for more than [30] days, either party may terminate this Agreement by giving [14] days written notice to the other party.
22. Dispute resolution
22.1 Neither party will commence court proceedings or action against the other party under or in connection with this Agreement (Dispute) (other than where urgent interlocutory relief is required) unless it has first attempted to resolve the dispute in accordance with this clause 22.
22.2 The parties will attempt to resolve any Dispute as follows:
(a) either party may notify the other party in writing of the occurrence of a Dispute and the parties must meet within 5 Business Days or such other time as agreed to discuss and attempt to resolve the Dispute;
(b) failing resolution of the Dispute within 10 Business Days after the first meeting between the parties in accordance with clause 22.2(a), the parties may agree to refer the Dispute for mediation to be conducted in accordance with the Australian Commercial Disputes Centre (ACDC) Mediation Guidelines and with a mediator as agreed by the parties or, failing agreement, as appointed by the CEO of the ACDC. If the parties do not agree to do so, either party may commence legal proceedings.
22.3 The parties must continue to perform their obligations under this Agreement while any Dispute is being resolved in accordance with this clause 22, except that where the Dispute relates to an invoice, the Customer may withhold payment of the disputed portion of the invoice until the Dispute is resolved.
23. Termination
23.1 A party may terminate this Agreement immediately upon written notice to the other party, if:
(a) that party breaches any obligation under this Agreement, which is capable of remedy, and does not remedy that breach within 14 days of receipt of a notice from the other party specifying the breach and requiring it to be remedied;
(b) a party commits a breach of this Agreement which is incapable of remedy;
(c) a party does anything that materially damages or is likely to materially damage the brand or reputation of the other party;
(d) a party or any of its Personnel commit any act of fraud or dishonesty in relation to this Agreement; or
(e) an Insolvency Event occurs in relation to a party.
23.2 Early Termination: Penalties will apply if the Customer wish to terminate Platformers Products, Services & Cloud Storage term contract(s) / Agreement(s) before the term is due and completed in its entirety. In the event where Platformers is providing the service within the agreed terms of the contract(s) / Agreement(s) provided, the Customer will be charged the following exit penalties immediately:
(a) Early termination fees for Professional & Managed Services contract(s) / Agreement(s). Customer must pay 75% of the remaining value of their term contract(s) / Agreement(s).
(b) Early termination fees for Licensed Software contract(s) / Agreement(s). Because Platformers contracts this infrastructure directly from the Cloud Services services & Infrastructure provider and specifically for customer use, early termination fees of such contract(s) / Agreement(s) will be those imposed on Platformers by the Cloud Services provider. Platformers will then pass on such costs directly to customers for immediate payment.
23.3 Platformers may terminate this Agreement immediately upon written notice to the Customer if:
(a) the Customer commits a material breach of an obligation of this Agreement and does not remedy that breach within 30 days of receipt of a notice from Platformers specifying the breach and requiring the breach to be remedied; or
(b) an Insolvency Event occurs in relation to the Customer.
23.4 The Term may be cancelled by either party without cause after the one-year anniversary of this agreement with 90 days’ prior written notice to the other party.
24. Consequences of termination
As soon as practicable after the expiry or termination of this Agreement, Platformers must:
provide to the Customer a copy of all Deliverables produced under this Agreement;
(b) return to the Customer all equipment, records, documents and materials provided by the Customer for the purposes of this Agreement, including any security passes and keys;
(c) return to the Customer all copies of all Confidential Information and Personal Information of the Customer in its possession or control;
(d) provide such services as the Customer reasonably requests to achieve an orderly, uninterrupted transition of the supply of the relevant Software, Services or Deliverables to the Customer or a new supplier of similar Software, Services or Deliverables appointed by the Customer; and
23.2 Clauses 14, 16, 17, 18, 19, 22, 24 and 26 continue after termination or expiry of this Agreement.
25. Reporting and contract management
25.1 Each party appoints the contract representative specified on the Cover Page to manage the relationship between the parties under this Agreement.
25.2 The parties will ensure that the contract representatives meet at the times and places as required by the Customer to discuss Platformers’ performance of, and any issues arising under this Agreement.
25.3 Platformers must at no additional cost to the Customer provide the Customer with written reports at intervals and containing the information specified in Schedule 1, or otherwise as required by the Customer , regarding Platformers’ performance under this Agreement, including its performance against any Service Levels.
26. Conflict of interest
Platformers must declare any conflict of interest prior to providing any Services or Deliverables to the Customer or, where Software, Services or Deliverables are already being provided, as soon as such a conflict comes to the attention of Platformers.
27. Subcontracting
Platformers must ensure that its subcontractors comply with all Laws and all standards applicable to the performance of Platformers’ obligations under this Agreement.
28. Notices
28.1 Any notice, demand, invoice, process or other communication relating to this Agreement (Notice) must be in writing in English and must be given to the other party’s contract representative as specified on the Cover Page or as notified to it by the other party from time to time.
28.2 A Notice may be given by being:
(a) sent by email to the party’s current email address for Notices.
28.3 Subject to clause 28.4, a Notice is given:
(a) if sent by email, on the next Business Day after being sent (as recorded on the device from which the sender sent the email) unless the sender receives an automated message that the email has not been delivered.
28.4 If a Notice is given:
(a) after 5:00pm Melbourne time in the place of receipt; or
(b) on a day which is a Saturday, Sunday or bank or public holiday in the place of receipt,
it is taken as having been given on the next Business Day.
29. General
29.1 Assignment
(a) This Agreement and the rights and obligations hereunder are personal to the Customer and save and except for any corporate reconstruction or other restructuring of the Customer ’s business, may not be assigned or transferred, in whole or in part, without Platformer’s written consent which will not be unreasonably withheld. Any attempt to do otherwise shall be void and of no effect.
(b) Save and except for and corporate reconstruction or other restructuring of Platformer’s business, this Agreement may not be assigned to any third party without the Customer ’s prior written consent which shall not be unreasonably withheld
(c) This Agreement shall be binding upon, and inure to the benefit of the successors, representatives and permitted assignees of the parties.
29.2 Relationship
Nothing in this Agreement gives rise to any relationship of agency, partnership, employment or otherwise between the parties.
29.3 Set-off
the Customer may by notice in writing to Platformers reduce any Fees or other charges or costs payable to Platformers under this Agreement by any fee, credit, rebate or other amount which is payable and due to the Customer under or in connection with this Agreement.
29.4 Entire agreement
This Agreement constitutes the entire agreement between the parties in connection with their respective subject matter and supersedes all previous agreements or understandings between the parties in connection with the relevant subject matter.
29.5 Further assurance
Each party must promptly do whatever any other party reasonably requires of it to give effect to this Agreement and to perform its obligations under this Agreement.
29.6 Inconsistency
In the event of any inconsistency between:
(a) the special conditions specified in sales proposal (if any);
(b) the sales proposal as modified from time to time;
(c) these Standard Terms; and
(d) any attachments,
the document listed first in this clause 30.6 will prevail to the extent of the inconsistency.
29.7 Waiver
No waiver of a right or remedy under this Agreement is effective unless it is in writing and signed by the party granting it.
29.8 Variation
No variation of this Agreement is effective unless made in writing and signed by each party.
29.9 Governing law
This Agreement is governed by the laws of Victoria and each party submits to the exclusive jurisdiction of the courts of Victoria.
29.10 Counterparts
This document may consist of a number of counterparts and, if so, the counterparts taken together constitute one document.
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