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The content of the Thomas Duryea web site is provided for
information purposes only. No claim is made as to the accuracy
or authenticity of the content of the website. Thomas Duryea
does not accept any liability to any person for the information
or advice (or the use of such information or advice) which
is provided on this web site or incorporated into it by reference.
The information on this website is provided on the basis that
all persons accessing the site undertake responsibility for
assessing the relevance and accuracy of its content.
The information contained in the Thomas
Duryea website is not to be displayed except in full screen
format. No liability is accepted for any information or services
which may appear in any other format. No responsibility is
taken for any information or services which may appear on
any linked websites.
Agreement means these terms and conditions, the Contract and any schedules, recitals attachments or annexures and the Credit Application (where applicable);
Business Day means a day that is not a Saturday, Sunday, public holiday or bank holiday in Melbourne, Victoria;
Change means any variation to all or part of the Contract;
Change Request means a written request by a party for a Change and must include any additional information reasonably necessary to enable the other party to properly assess the request; Confidential Information means all information belonging or relating to a party to this Agreement, whether oral, graphic, electronic, written or in any other form, that is not generally available to the public at the time of disclosure other than by reason of a breach of this Agreement or that is in fact, or should reasonably be regarded as, confidential to the party to whom it belongs or relates;
Contract means:
- a written statement (including any attachments) for the provision of the Services entitled “statement of work” or similar entered into by Thomas Duryea and the Customer; or
- a Managed Service Agreement or written statement (including any attachments) for the provision of Services entitled “Managed Services Agreement” or “Minder Services Agreement” or similar; entered into by Thomas Duryea and the Customer.
Credit Application means the written application by the Customer for a trading account with Thomas Duryea in the form provided by Thomas Duryea;
Expenses means out-of-pocket expenses incurred by Thomas Duryea in connection with the provision of the Services and as invoiced in accordance with clause 11.3;
Fees means the fees specified in the Contract and payable by the Customer to Thomas Duryea for provision of the Services;
Hardware means any equipment specified in the Contract to be provided by Thomas Duryea to the Customer;
Intellectual Property Rights means all present and future intellectual and industrial property rights conferred by statute, at common law or in equity and wherever existing, including:
- patents, designs, copyright, rights in circuit layouts, plant breeder’s rights, trade marks, know how, brand names, domain names, inventions, product names, trade secrets and any other rights subsisting in the results of intellectual effort in any field, whether or not registered or capable of registration;
- any application or right to apply for registration of any of these rights;
- any registration of any of those rights or any registration of any application referred to in paragraph (b); and
- all renewals and extensions of these rights;
Law means:
- principles of law or equity established by decisions of courts;
- statutes, regulations or by-laws of the Commonwealth, a State, a Territory or a Government Agency; and
- requirements and approvals (including conditions) of the Commonwealth, a State, a Territory or a Government Agency that have the force of law;
Managed Services Agreement means an agreement for Services entered into by Thomas Duryea and the Customer and includes the:
- Minder Services Agreement
- Minder Services Agreement – Minder Strategic Support Service;
- Minder Services Agreement – Minder Enterprise Support Service;
- Minder Services Agreement – Minder Managed Disaster Recovery Service;
- Minder Services Agreement – Managed IT Support Service;
- Minder Services Agreement – PrePaid Support Service;
or any other type of managed services agreement entered into by Thomas Duryea and the Customer;
Services means the information technology consultancy services, management consultancy services, managed services, data backup, data management or protection services, disaster recovery services, software development services and other services provided by Thomas Duryea to the Customer and includes any Software, Hardware, Support Services, or any other product or service specified in the Contract;
Site means a location or locations where the Services will be provided, connected or installed as agreed between the Parties;
Software means the software specified in the Contract and includes any software embedded in the Hardware;
Support Services means the maintenance and support services specified in the Contract; and
Unavoidable Costs means:
- any costs incurred by Thomas Duryea, in connection with the performance of its obligations under this Agreement or any agreement with any third party in connection with this Agreement which cannot be cancelled, refunded or re-allocated to Thomas Duryea’s other operations or business activities;
- the costs of any redeployment or termination of employment of Thomas Duryea’s personnel engaged for the purposes of providing the Services; and
- the costs identified by Thomas Duryea for any capital purchases made in connection with the Services.
In this Agreement, unless the context requires otherwise:
- the singular includes the plural and vice versa;
- the headings are used for convenience only and do not affect the interpretation of this Agreement;
- other grammatical forms of defined words or expressions have corresponding meanings;
- if something is to be or may be done on a day that is not a Business Day then it must be done on the next Business Day;
- the word “month” means calendar month and the word “year” means 12 months;
- the words “in writing” include any form of communication capable of being read by the recipient;
- a reference to a thing includes a part of that thing;
- a reference to all or any part of a statute, rule, regulation or ordinance (statute) includes that statute as amended, consolidated, re enacted or replaced from time to time;
- wherever “include” or any form of that word is used, it must be construed as if it were followed by “(without being limited to)”; and
- money amounts are stated in Australian currency unless otherwise specified.
If there is any inconsistency between any part of this Agreement, the provisions in the following documents will prevail, to the extent of any inconsistency, in the following order of precedence:
- the Contract;
- the main body of this Agreement; and
- the Credit Application (where applicable).
This Agreement has effect on and from the date specified in the Contract and will continue:
- for the period specified in the Contract;
- until all Services specified in the Contract have been provided to the Customer; or
- unless terminated earlier in accordance with the provisions of this Agreement.
- Subject to payment of the Fees and Thomas Duryea’s acceptance of the Customer’s Credit Application (where applicable), Thomas Duryea will use reasonable endeavours to provide the Services with due care and skill in accordance with the terms of this Agreement.
- Thomas Duryea will use reasonable endeavours to deliver and, where applicable, install or provide the Services on the dates and in the manner specified in the Contract.
- Any risk in the Hardware passes to the Customer on delivery and title in Hardware passes when the Fees have been paid in full.
- Unless title passes to the Customer in accordance with clause 5(a), the Customer must ensure the Hardware remains the property of Thomas Duryea and is stored separately by the Customer to enable it to be readily identified as the property of Thomas Duryea and cross referenced to particular invoices.
- Until all liability to Thomas Duryea has been discharged, if the Customer sells or otherwise disposes of the Hardware before title to them has passed from Thomas Duryea to the Customer:
- that part of the proceeds of any sale or dealing as is equal to the Fees payable by the Customer to Thomas Duryea for the Services (Thomas Duryea’s Entitlement) must be held by the Customer in a separate identifiable account on trust for Thomas Duryea; and
- the Customer must account to Thomas Duryea for Thomas Duryea’s Entitlement.
- Any risk in the Software passes to the Customer on delivery and title in any media embodying the Software passes when the Fees have been paid in full.
- Thomas Duryea may provide the Customer with Software licensed by a third party (Third Party Material) the Customer acknowledges that:
- its use of the Third Party Material will be subject to the third party licensor’s licence agreement; and
- all licences with respect to the Customer’s use of the Third Party Material will be between the Customer and the third party developer, (Third Party Licence)
- Title in any Third Party Material remains at all times with the third party.
- The Customer is solely responsible for its compliance with the Third Party Licence and Thomas Duryea will not be responsible for, or have any obligation to ensure, that the Customer agrees to or complies with the Third Party Licence.
- Where requested by the Customer, Thomas Duryea will use reasonable endeavours to provide the Customer with a copy of the Third Party Licence.
Where specified in the Contract, Thomas Duryea will provide the Support Services at the times and in the manner specified in the Contract.
- Any representation, warranty, condition 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.
- Nothing in this Agreement excludes, restricts or modifies any condition, warranty, right or remedy conferred on the Customer by the Trade Practices Act 1974 (Cth) or any other applicable Law that cannot be excluded, restricted or modified by agreement.
- To the fullest extent permitted by law, the liability of Thomas Duryea for a breach of a non excludable condition or warranty referred to in clause 8(b) is limited, at Thomas Duryea’s option, to:
- in the case of goods, any one or more of the following:
- the replacement of the goods or the supply of equivalent goods;
- the repair of the goods;
- the payment of the cost of replacing the goods or of acquiring equivalent goods; or
- the payment of the cost of having the goods repaired; or
- in the case of services:
- the supplying of the services again; or
- the payment of the cost of having the services supplied again.
The Customer undertakes to:
- do all things necessary to enable Thomas Duryea to perform its obligations under this Agreement including performing any works, providing any equipment or connecting any services as required by Thomas Duryea from time to time;
- provide Thomas Duryea with all assistance and co-operation in the performance of this Agreement required by Thomas Duryea including providing Thomas Duryea with;
- access to the Site as and when required by Thomas Duryea;
- access to relevant Customer individuals, directors, officers, employees, agents, consultants, sub-contractors, specialists and other personnel (Personnel); and
- all information and documentation as requested by, or as otherwise necessary for, Thomas Duryea, for the purposes of performing its obligations under this Agreement;
- appoint and maintain sufficient numbers of appropriately qualified Personnel to liaise with Thomas Duryea in relation to the performance of this Agreement; and
- negotiate in good faith and not unreasonably delay performance of its obligations, including consents, under this Agreement.
Thomas Duryea is not responsible for any failure to perform any of its obligations under this Agreement where, in the opinion of Thomas Duryea, such failure is caused or contributed to by the Customer or any third party.
The Customer will pay Thomas Duryea:
- the Fees in the manner and on the dates specified in the Contract; and
- any other amounts payable under this Agreement in accordance with clause 11.4.
The Parties acknowledge and agree that Thomas Duryea will be reimbursed on demand at the actual cost for Expenses, provided that such expenses are documented and receipts are attached to the Expenses invoice, where applicable.
Thomas Duryea will provide the Customer with a valid invoice for all amounts due in respect of the:
- Contract in accordance with the relevant schedule or timetable (if any) specified in the Contract; and<
- as otherwise specified by Thomas Duryea.
Unless otherwise specified by Thomas Duryea, the Customer will pay all validly issued invoices within 14 days from date of invoice.
If any amount payable to Thomas Duryea under this Agreement has not been paid by the Customer by the due date for payment, Thomas Duryea may:
- charge interest on the amount outstanding at the rate of 4% above the overdraft index rate charged by Commonwealth Bank (or such other bank as Thomas Duryea may nominate) from time to time calculated per annum from the due date for payment until such time as full payment of the outstanding amount is made by the Customer(which interest must be paid by the Customer on demand by Thomas Duryea);
- suspend performance of this Agreement (in part or in full) until the amount outstanding is paid in full;
- enter the Site to remove the Services (where applicable); or
- terminate this Agreement.
- Unless expressly stated to the contrary, all fees (including the Fees), costs and charges referred to in this Agreement are exclusive of all taxes, duties and imposts.
- If Thomas Duryea is or will be liable for any taxes, duties or imposts on or relating to this Agreement or anything done pursuant to this Agreement then the Customer will pay Thomas Duryea an amount equal to that liability at the time that it pays any fees, costs or charges to which the liability relates.
The exercise by Thomas Duryea of any of its rights under clause 11.5 does not affect:
- the Customer’s obligation to pay any money due and payable; or
- any other rights or remedies Thomas Duryea may have in relation to any failure by the Customer to pay an amount due,
under this Agreement or any other agreement between Thomas Duryea and the Customer.
- Definitions
In this clause 11.8:
- the expressions Consideration, GST, Input Tax Credit, Recipient, Supply, Tax Invoice and Taxable Supply have the meanings given to those expressions in the A New Tax System (Goods and Services Tax) Act 1999 (GST Act); and
- Supplier means any party treated by the GST Act as making a Supply under this Agreement.
- 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.
- If GST is imposed on any Supply made under or in accordance with this Agreement, the Recipient of the Taxable Supply must pay to the Supplier an additional amount equal to the GST payable on or for the Taxable Supply, subject to the Recipient receiving a valid Tax Invoice in respect of the Supply at or before the time of payment.
- Payment of the additional amount must be made at the same time and in the same way as payment for the Taxable Supply is required to be made in accordance with this Agreement.
- 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:
- the amount of the Reimbursable Expense net of Input Tax Credits (if any) to which the Other Party is entitled in respect of the Reimbursable Expense (Net Amount); and
- if the Other Party’s recovery from the First Party is a Taxable Supply, any GST payable in respect of that Supply, such that after the Other Party meets the GST liability, it retains the Net Amount.
Either party may at any time request a Change to the Contract as follows:
- the party requesting the Change must, at its own cost, submit a Change Request in respect of the proposed Change and a written statement of business requirements to the other party;
- at the cost of the Customer, Thomas Duryea will produce a specification for the Change, an estimate of the timing for performance of the Change and its likely impact on existing milestones or delivery dates, and a quote for the likely Fee for performance of the Services comprising the Change; and
- if the specification, cost estimate, implementation program and terms of payment for the Change not agreed in writing by the parties within 5 Business Days of Thomas Duryea providing the material specified in clause 12(b), the Change Request will be deemed to be accepted and the relevant Fee will be amended accordingly.
Each party (Receiving Party) receiving, possessing or otherwise acquiring Confidential Information of any other party (Disclosing Party) acknowledges that the Disclosing Party’s Confidential Information is the property of and confidential to or a trade secret of the Disclosing Party. Subject to clause 13.2, the Receiving Party must:
- keep the Disclosing Party’s Confidential Information confidential and not directly or indirectly disclose, divulge or communicate that Confidential Information to, or otherwise place that Confidential Information at the disposal of, any other person without the prior written approval of the Disclosing Party;
- take all reasonable steps to secure and keep secure all Disclosing Party’s Confidential Information coming into its possession or control; and
- not memorise, use, modify, reverse engineer or make copies, notes or records of the Disclosing Party’s Confidential Information for any purpose other than in connection with the performance by the Receiving Party of its obligations under this Agreement.
The obligations of confidentiality under clause 13.1 do not apply to any information that:
- is generally available to the public (other than by reason of a breach of this Agreement); or
- is required to be disclosed by any applicable law.
- The Customer acknowledges that all materials, software, methods, processes, reports, documentation or other information or material (whether in electronic or material form) (Material) and all existing and future Intellectual Property Rights arising from or in connection with the Services or any Material, are the property of and will at all times remain vested in Thomas Duryea.
- To the extent that any Intellectual Property Rights referred to in clause 14(a) do not automatically vest in Thomas Duryea, the Customer immediately assigns to Thomas Duryea absolutely and beneficially the whole of its rights, title and interest in and to those Intellectual Property Rights, whether presently existing or which arise at a date after the date of this Agreement, with effect from the date the Contract is signed by the Customer.
- The Customer agrees to do all things necessary or desirable, and ensure its Personnel do all things necessary or desirable, to effect the assignment referred to in clause 14(b).
- Thomas Duryea hereby grants the Customer a non-exclusive, non-transferable, worldwide, revocable, royalty-free licence to use, modify, communicate, adapt or reproduce the Material provided as deliverables pursuant to the Contract, solely for the Customer’s internal business purposes.
- Thomas Duryea is not liable to the Customer or to any other person for any indirect, incidental, indirect, special, exemplary or consequential loss or damage, loss of profits or anticipated profits, loss of revenue, economic loss, loss of business opportunity, damage to goodwill, loss of data or loss or damage resulting from wasted management time irrespective of whether:
- the loss or damage is caused by or relates to breach of contract, statute, tort (including negligence) or otherwise;
- the possibility of such loss or damage was foreseeable; or
- Thomas Duryea or any other person was previously notified of the possibility of the loss or damage.
- Thomas Duryea is not liable for any loss or damage howsoever caused to any property or person of the Customer or any third party as a result of any defect in the Services.
- The maximum aggregate liability of Thomas Duryea 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 Thomas Duryea under the Contract in the preceding 6 months.
- The Customer indemnifies Thomas Duryea for any and all loss and damage (including legal fees) arising out of or in connection to:
- all and any claims whatsoever and howsoever arising made by any third party in connection with or arising out of the Customer’s use of the Services; and
- any failure by the Customer to obtain a consent necessary for Thomas Duryea to provide the Services.
- In addition to the indemnity contained in clause 15(d), where Thomas Duryea accepts the Customer’s Credit Application the Customer indemnifies Thomas Duryea on the terms of the indemnity contained in clause 4.5 of the Credit Application.
Neither Party will be liable to the other for any delay or failure to perform its obligations under this Agreement as a result of a cause beyond its reasonable control (Force Majeure). If the Force Majeure continues for a period of more than 40 Business Days, the party not affected by the Force Majeure may terminate this Agreement by written notice to the affected party.
Thomas Duryea may terminate this Agreement at any time for any reason and without prejudice to any right or action or remedy which has accrued or which may accrue in favour of Thomas Duryea, by giving the Customer 20 Business Days notice to that effect.
The Customer may, by notice in writing to Thomas Duryea, terminate this Agreement, where Thomas Duryea has breached this Agreement and has failed to remedy the breach within 20 Business Days after being notified by the Customer that it requires remedy.
Upon termination of this Agreement by either party:
- the Customer will pay the Fees in full in relation to all Services provided up to the date of termination;
- the Customer will pay Thomas Duryea’s Unavoidable Costs;
- subject to the Customer complying with its obligations in clauses 17.3(a) and 17.3(b), the Customer be entitled to retain and use that part of the Services provided by Thomas Duryea and paid for in full by the Customer on or before the date of termination; and
- the Customer must immediately cease using and return to Thomas Duryea any part of the Services that is not paid for by the Customer, at the Customer’s cost.
This clause 17.4 together with clauses 8, 13 to 15, 17.1, 18 and 19 survive termination or expiration of this Agreement.
- During the term of this Agreement and for a period of 12 months following its termination or expiry the Customer shall not directly or indirectly:
- solicit or encourage any employee of Thomas Duryea who was involved in performing this Agreement, to leave the employ of Thomas Duryea; or
- solicit or encourage any consultant or other contractor under contract with Thomas Duryea who was involved in performing this Agreement, to cease work for Thomas Duryea.
- The Customer agrees to pay, in the event that it breaches clause 18(a), Thomas Duryea, 12 month’s remuneration of that person when last engaged by Thomas Duryea and the Customer agrees to pay that amount on demand. The parties agree that this amount is a genuine pre-estimate of the loss suffered by Thomas Duryea as a result of the Customer’s conduct.
- A party claiming that a dispute has arisen must give written notice to the other party specifying the nature of the dispute and the parties must submit themselves to the dispute resolution procedure specified in this clause 18.
- The parties agree that if a dispute arises out of or relates to this Agreement, a party may not commence any legal proceedings relating to the dispute unless it has complied with the provisions of this clause 18 except to seek urgent equitable or interlocutory relief. The procedures in this clause 18 must be completed within 40 Business Days from the giving of notice referred to in this clause 18. After expiry of this time a party may commence legal proceedings relating to the dispute.
- When a dispute arises between the parties in relation to this Agreement, then:
- all amounts payable by the Customer to Thomas Duryea which are not in dispute must be paid in accordance with the Contract;
- if the parties cannot resolve the dispute within 10 Business Days after notice has been given, then the dispute is to be referred to the respective chief executive officers or their nominees of each party (jointly referred to in the remainder of this clause 18 as Chief Executive Officers) for resolution; and
- if the Chief Executive Officers cannot resolve the dispute within 10 Business Days after referral, then the parties must submit the Dispute to a mediator for consideration in accordance with the Mediation and Conciliation rules of the Institute of Arbitrators and Mediators Australia, which Rules are taken to be incorporated into this Agreement.
- Each party must pay its own internal and legal costs in relation to complying with this clause 18. The mediator’s costs are to be shared equally between the parties.
- This Agreement is governed by and must be construed in accordance with the laws in force in Victoria.
- The parties submit to the exclusive jurisdiction of the courts of that State and the Commonwealth of Australia in respect of all matters arising out of or relating to this Agreement, its performance or subject matter.
A party cannot assign or otherwise transfer the benefit of this Agreement without the prior written consent of the other party.
This Agreement cannot be amended or varied except in writing signed by the parties.
Any notice or other communication to or by a party under this Agreement:
- may be given by personal service, post, facsimile or sent electronically by email
- must be in writing, legible, signed by the relevant parties authorised representative and in English addressed (depending on the manner in which it is given) to the relevant contact and address, facsimile number or email specified in the Contract or to any other address facsimile number or email last notified by the party to the sender by notice given in accordance with this clause; and
- is deemed to be given by the sender and received by the addressee:
- if delivered in person, when delivered to the addressee;
- if posted, 2 Business Days (or 6, if addressed outside Australia) after the date of posting to the addressee whether delivered or not;
- if sent by facsimile transmission, on the date and time shown on the transmission report by the machine from which the facsimile was sent which indicates that the facsimile was sent in its entirety and in legible form to the facsimile number of the addressee notified for the purposes of this clause; or
- if sent electronically by email and confirmation is received from the relevant internet service provider that the transmission was successfully delivered, on the day of transmission, but if the delivery or receipt is on a day which is not a Business Day or is after 4.00 pm (addressee’s time), it is deemed to have been received at 9.00 am on the next Business Day.
- This Agreement contains the entire understanding between the parties concerning the Services and, unless otherwise specified in this Agreement, supersedes all prior agreements and communications between the parties.
- Each party acknowledges that, except as expressly stated in this Agreement, that party has not relied on any representation, warranty or undertaking of any kind made by or on behalf of another party in relation to the Services.
- A failure, delay, relaxation or indulgence by a party in exercising any power or right conferred on the party by this Agreement does not operate as a waiver of the power or right.
- A single or partial exercise of the power or right does not preclude a further exercise of it or the exercise of any other power or right under this Agreement.
- A waiver of a breach does not operate as a waiver of any other breach.
Where anything depends on the consent or approval of a party then, unless this Agreement provides otherwise, that consent or approval may be given conditionally or unconditionally or withheld, in the absolute discretion of that party.
Any provision of this Agreement which is invalid in any jurisdiction must, in relation to that jurisdiction:
- be read down to the minimum extent necessary to achieve its validity, if applicable; and
- be severed from this Agreement in any other case,
without invalidating or affecting the remaining provisions of this Agreement or the validity of that provision in any other jurisdiction.
A term or condition of, or act done in connection with, this Agreement does not operate as a merger of any of the rights or remedies of the parties under this Agreement and those rights and remedies continue unchanged.
Version 3.00. Last updated 7 April 2009.
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