Meridian IT Pty Ltd
ABN 86 064 019 290
Licensed software supply
Licensed software support plans
Licensed software installation service
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, trade marks, 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 Licence means the relevant end user licence 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 Licences, 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.
In this Agreement:
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 Licence or a Licensed Software Support Plan.
The Supplier will provide the Customer with the Licensed Software and its Documentation (where provided by the licensor of that software). The Customer acknowledges that the Supplier is a reseller of the Licensed Software Licence. The Licensed Software is licensed to the Customer directly by the relevant licensor of that Licensed Software according to the terms of the Licensed Software Licence. The Supplier is not liable to the Customer for the performance of the Licensed Software. The Customer’s rights in respect of the Licensed Software are as set out in the Licensed Software Licence. The Supplier is not responsible for installing the Licensed Software unless the Customer has agreed to purchase the Licensed Software Installation Service for that Licensed Software.
The Supplier will provide the Customer with the Licensed Software Support Plan. The Customer acknowledges that the Supplier is a reseller of the Licensed Software Support Plan, The support for the Licensed Software is provided by the relevant supplier specified in the Licensed Software Support Plan according to the terms of that plan. The Supplier is not liable to the Customer for the support services described in the Licensed Software Support Plan. The Customer’s rights to support in respect of the Licensed Software are as set out in the Licensed Software Support Plan.
This clause 8 applies only if the Quotation requires the Supplier to supply the Customer with a Licensed Software Installation Service.
The Customer will ensure that its data is backed-up and secure at all times before commencement of the Licensed Software Installation Service. The Supplier is not responsible for backing up any Customer data.
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.
The Supplier will not be required to provide any training materials to the Customer’s trainees unless otherwise required by the Quotation.
The Customer must pay the Supplier the Price in accordance with this Agreement and the Quotation.
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.
If the Customer wishes to dispute an Invoice it must:
before the due date for payment of the Invoice.
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):
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.
Each party (Recipient) acknowledges that:
The Recipient must (except as may be required by law or with the Discloser’s prior written consent):
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:
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 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:
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.
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.
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:
Despite any other provision of this Agreement, this clause 17 survives the expiry or termination of this Agreement.
Subject to clause 17, the Supplier will be under no liability to the Customer or any other person in respect of:
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.
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:
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:
The Customer may terminate this Agreement immediately by notice in writing if:
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:
Neither the benefits nor burdens of this Agreement may be assigned, transferred, licensed or sub-licensed by the Customer without the prior written consent of the Supplier. The Supplier may assign the benefits or burdens of this Agreement to a Related Body Corporate or other entity under common ownership with the Supplier or the purchaser of all or a substantial part of the Supplier’s business.
Any express statement of a right of the Supplier under this Agreement is without prejudice to any other right of the Supplier expressly stated in this Agreement or existing at law.
The covenants, conditions and provisions of this Agreement which are capable of having effect after the expiration of the Term or termination will remain in full force and effect following the expiration of the Term or termination.
This Agreement will be governed by and construed in accordance with the laws in force in the State of New South Wales, and the parties irrevocably submit to the exclusive jurisdiction of the Courts of that State and of the Commonwealth of Australia in respect of all matters arising out of or relating to this Agreement, its performance or subject matter.
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.
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.
This Agreement is not to be construed to the disadvantage of a party because that party was responsible for its preparation.
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.