Agreement Structure
Structure and precedence
This Agreement is comprised of the following parts:
clauses 1 to 23 of this document;
each Order (including any attachments, specifications and statements of work); and
any other document which, through a term of this Agreement, is specified to be incorporated into this Agreement.
To the extent there is any inconsistency between any of the terms in the documents listed in clause 1.1(a), the terms listed first will govern to the extent of the inconsistency.
Quotes and Orders
The Customer may order Software, SaaS, Support Services, and Professional Services during the Term by requesting a quote from FMI Works for those Software, SaaS, Support Services, and Professional Services.
If the Customer accepts the quote, the Customer must accept the quote in writing (which may include issuing a purchase order) by the date specified in that quote.
Upon receipt by FMI Works of the Customer’s acceptance in accordance with clause 1.2(b), that quote will constitute a separate binding Agreement, incorporating the terms and conditions of this Agreement (other than this clause 1.2(c)) with all amendments as are necessary to give effect to this incorporation, and including any attachments, specifications, and statements of work (each an Order).
The Customer is not obliged to order, and FMI Works is not obliged to supply or make available, any Software, SaaS, Support Services, or Professional Services unless an Order has been accepted by the Customer in accordance with clause 1.2(b).
No Orders may be entered into under this Agreement after the expiry or termination of this Agreement.
Any terms or conditions set out in any Customer purchase order or other document, and whether or not 'acceptance' by FMI Works is required or provided, are specifically excluded and are not binding on FMI Works.
Term
Agreement term
This Agreement will commence on the Agreement Commencement Date and continue until the last of the Orders to expire, unless terminated earlier in accordance with this Agreement (Term).
Order term
The term of an Order starts on the date the Order comes into effect on the Order Commencement Date and:
if the Order is for Professional Services only, continues until the Professional Services have been delivered;
if it is the Customer’s first Order under this Agreement and the Order includes Software or SaaS, continues for one year and automatically renews on the anniversary of the Order Commencement Date (Order Alignment Date), subject to clause 11.1(b); or
if it is not the Customer’s first Order under this Agreement and the Order includes Software or SaaS, continues until the Order Alignment Date, and automatically renews on the anniversary of the Order Alignment Date thereafter, subject to clause 11.1(b),
unless terminated earlier in accordance with this Agreement or the applicable Order (Order Term).
Software (on premise)
Subject to clause 7.1(c) and to the Customer paying the Fees, FMI Works grants to the Customer a non‑exclusive, non‑transferable, non‑sublicensable licence to use the Software during the Order Term (unless otherwise specified in the applicable Order), solely for Customer’s internal business purposes, in accordance with any applicable Documentation, and subject to the applicable Order. The licence granted under this clause 3(a) is for use of the Software in an On-Premise Environment only (unless and to the extend otherwise specified in the applicable Order) and, accordinatly, the Customer must only use the Software in an On-Premise Environment (unless and to the extent otherwise specified in the applicable Order).
To the extent applicable, any use of the Software in excess of the volume licensed under the applicable Order must be licensed under a separate Order and may be subject to additional Fees.
The Customer may make a reasonable number of copies of the Software solely for backup or archival purposes, subject to clause 3(a).
Software as a Service
Right to access and use
Subject to clause 7.1(c) and to the Customer paying the Fees, FMI Works grants to the Customer a non‑exclusive, non-transferable, non-sublicensable right to access and use the SaaS during the Order Term, solely for Customer’s internal business purposes, in accordance with any applicable Documentation, and subject to the applicable Order.
To the extent applicable, any use of the SaaS in excess of the volume licensed under the applicable Order must be permitted under a separate Order and may be subject to additional Fees.
The Customer acknowledges that the SaaS may be provided using a multi‑tenanted environment, as specified in the Documentation or the applicable Order. FMI Works is not obligated to:
store the Customer Data separately to the data of other customers; or
maintain a separate, dedicated instance of the SaaS for the Customer,
unless expressly agreed otherwise under an Order.
Suspension
FMI Works may immediately suspend the Customer’s access to the SaaS without notice:
for any breach of clause 6;
for any use of the SaaS other than in accordance with the Order, the Documentation or as may be authorised by FMI Works in writing;
in response to suspicious or unusual activity on the Customer’s account;
for breach of any applicable Acceptable Use Policy; or
in order to comply with applicable laws.
For security, confidentiality and privacy reasons, FMI Works is not obligated to provide to the Customer the details of any investigation or any action undertaken.
Third Party Materials
FMI Works may make available certain Third Party Materials as part of, or in connection with, a Solution, which may require terms in addition to FMI Works’ standard terms, or may be made available to the Customer under a separate agreement between the Customer and the supplier of the Third Party Material, or under terms passed through to the Customer by FMI Works from the supplier of the Third Party Material (such supplemental terms, separate agreement or pass-through terms, the Third Party Supplier Terms).
If Third Party Supplier Terms apply, they will be included in the applicable Order or the applicable Order will indicate where the Customer can obtain them. Upon the Order Commencement Date, the Customer becomes bound to the Third Party Supplier Terms referenced in the Order.
Third Party Materials subject to Third Party Supplier Terms are provided or recommended by FMI Works on as "as-is" basis and without any warranty, license or indemnity of any kind from FMI Works.
The Customer grants FMI Works anon-exclusive, royalty-free licence to use the Third Party Materials during the Order Term (unless otherwise specified in the applicable Order), as reasonably required to perform its obligations to the Customer under this Agreement.
Restrictions
The Customer must not, and must not authorise or permit any third party to:
modify, adapt, alter, translate, or create derivative works from the Software or SaaS;
develop any software or system that incorporates or otherwise uses the Software or SaaS (or any component of the Software or SaaS) other than in accordance with the Documentation;
sublicense, lease, rent, loan, or otherwise transfer (subject to clause 22.3) the Software or SaaS to any third party;
otherwise access or use the Software to provide services to third party users;
reverse engineer, decompile, disassemble, or otherwise attempt to derive the Source Code for the Software or SaaS;
otherwise use, reproduce, translate, modify, or copy the Software, SaaS or the Source Code except as expressly allowed under this Agreement;
use the Software or SaaS:
to engage in or facilitate fraudulent or illegal activity;
to access, store, distribute, transmit, publish or communicate material that is unlawful, harmful, threatening, obscene, pornographic, defamatory, offensive, abusive, violent, indecent, menacing, unwanted, infringing, harassing, or discriminatory;
to cause damage or injury to any person or property;
to gain unauthorised access to or interfere with any third party’s online resources or systems, including any form of hacking;
in a way the Customer know, or ought to reasonably know, infringes any third party’s Intellectual Property Rights;
in a way that disrupts, misuses or excessively uses (other than as part of a pre-agreed performance testing or penetration testing exercise) the hardware, bandwidth access, storage space or other resources of FMI Works or FMI Works’ other customers; or
in a way that may violate any laws or regulations, or cause us to be in violation of any laws or regulations;
access, store, distribute, or transmit any viruses, malware or any other computer program that is designed to, or may in the ordinary course of its operation prevent, inhibit, or impair the performance of the Software or SaaS; or
circumvent any of FMI Works’ security measures.
Support Services
Support Services
Subject to clause 7.1(c) and to the Customer paying the Fees, FMI Works will provide Support Services in accordance with the Support Services Guide, and subject to clause 7.1(b) and the Order.
If payment of the Fees is overdue by more than 30 days, FMI Works reserves the right to immediately suspend the Support Services until the Fees are paid.
FMI Works may, upon 180 days’ prior written notice to the Customer, notify the Customer that it no longer supports the Software (or a particular release of the Software) or the SaaS, in which case:
the licence in respect of the Software (or particular release of the Software) under clause 3, or the right to access and use the SaaS under clause 4; and
the provision of Support Services for such Software (or particular release) or SaaS,
will automatically terminate at the end of such 180 day notice period.
Support Services term
The Support Services will commence on:
delivery of the Software to the Customer; or
the date on which the SaaS is made available to the Customer by FMI Works (as the case may be), and continue for the applicable Order Term.
Updates and Upgrades
The Customer’s right to receive Updates and Upgrades of the Software is conditional upon the payment of all Fees in accordance with the Order.
Professional Services
Provision of Professional Services
FMI Works will provide the Professional Services and deliver any Deliverables to the Customer, in accordance with the applicable Order.
Change request
If either party to an Order wishes to change the Professional Services or Deliverables (or both) being provided under that Order, a request must be submitted in writing to the other party.
Upon agreement by the parties on the change or modification, FMI Works will prepare a Change Request Form describing the requested changes or modifications to the applicable Order.
Neither party will incur obligations under the Change Request Form until it is agreed by both parties in writing.
Once agreed by both parties in writing, the Change Request Form will amend the applicable Order in accordance with its terms.
Customer Responsibilties
Without limiting any obligations the Customer has under this Agreement or any Order, the Customer must perform the responsibilities specified in this clause 9.
The Customer acknowledges that FMI Works’ ability to perform its obligations under this Agreement relies on the Customer’s performance of its obligations.
The Customer and its Personnel must cooperate with FMI Works’ reasonable requests for assistance and information (including, without limitation, granting FMI Works access to the Customer’s system and system data as is reasonably necessary) in order to facilitate the performance of any of FMI Works’ obligations under an Order.
The Customer is responsible for:
maintaining the Customer’s system and network infrastructure as specified in the Documentation, including:
for any SaaS customers, maintaining all operating systems, applications and browsers that access the SaaS, application programming interfaces and other associated mechanisms;
for any Software customers, maintaining all operating systems, applications and browsers that access the Software, application programming interfaces and other associated mechanisms together with all server and network security maintenance;
maintaining the confidentiality of any passwords and account information issued by the Customer to its end users;
all acts that occur in connection with its end users’ accounts; and
ensuring all its end users are aware of the terms and conditions governing use of the Software or SaaS (as the case may be).
Acceptance Testing
This clause 10 applies to Orders for:
Software;
Professional Services, where acceptance testing is agreed between the parties as part of the Order;
SaaS, but only where it is the subject matter of the Customer’s first order under this Agreement.
The Customer must test an Assessable Item against the Acceptance Criteria (Acceptance Testing) within 10 Business Days after delivery of an Assessable Item to the Customer (Test Period) in accordance with the applicable Order. The Customer must accept the Assessable Item if the Assessable Item meets the Acceptance Criteria.
If the Assessable Item does not meet the Acceptance Criteria within the Test Period, the Customer must notify FMI Works in writing within 2 Business Days following the Test Period, specifying any nonconformity of the Assessable Item with the Acceptance Criteria (Defect) in reasonable detail.
If the Customer does not notify FMI Works in writing of any Defect within the Test Period, that Assessable Item will be deemed to have met the Acceptance Criteria.
If FMI Works reasonably determines and demonstrates to the Customer’s reasonable satisfaction (acting reasonably and in good faith) that the non‑conformity notified to FMI Works under clause 10(c) is not a Defect or not attributable to FMI Works’ failure to perform the Professional Services in accordance with the Order, FMI Works will notify the Customer outlining such determination in reasonable detail. If the Customer (acting reasonably and in good faith) accepts FMI Works’ determination, the non-conformity notified to FMI Works’ under clause 10(c) will not be considered a Defect. In the absence of the Customer notifying FMI Works of any other Defects within the Test Period, the Assessable Item will be deemed to have met the Acceptance Criteria.
If FMI Works agrees that a Defect is attributable to FMI Works’ failure to perform the Professional Services in accordance with the Order, FMI Works must promptly remedy the relevant Defect and re‑submit the Assessable Item to the Customer for further Acceptance Testing. The Customer must test the re‑submitted Assessable Item in accordance with clause 10(b), and the parties will repeat the process in clauses 10(b) to 10(e), subject to clause 10(f).
If the Customer reasonably determines that the Assessable Item does not meet the Acceptance Criteria upon expiration of the Test Period, the Customer must notify FMI Works in writing, specifying the Defect in reasonable detail, and the Customer may, in its sole and absolute discretion, and by written notice to FMI Works, elect to:
extend the Test Period, and require FMI Works to rectify or replace the Assessable Item and continue to re‑submit the Assessable Item for further repeated Acceptance Testing until the Customer is satisfied that the Assessable Item satisfies the Acceptance Criteria;
accept the Assessable Item, subject to FMI Works rectifying any Defect identified in writing by the Customer in reasonable detail, within a period agreed between the parties in writing;
accept the Assessable Item on an “as is” basis, subject to the parties agreeing an appropriate reduction to the fees in relation to the Assessable Item; or
reject the Assessable Item entirely, in which case the Customer is immediately entitled to, and FMI Works must refund to the Customer all fees paid in advance in relation to that Assessable Item (or, where no specific fees are payable in respect of such Assessable Item, a reasonable amount agreed between the parties) within 10 Business Days (and no further amounts are due from the Customer to FMI Works in relation to that Assessable Item).
The Assessable Item will be considered accepted if, without FMI Works’ written consent, the Customer uses the Assessable Item in a live production environment.
Fees and Payment
Fees
The Customer must pay the Fees and any Expenses to FMI Works, without deduction or set‑off, as specified in the applicable Order. If not specified, the Customer must pay FMI Works within 30 calendar days of the date of any invoice from FMI Works.
Upon each automatic renewal of an Order in accordance with clause 2.2(b) or 2.2(c), FMI Works will adjust the Fees to its then-current pricing.
Fees exclude all taxes unless stated otherwise.
Time for payment is of the essence.
Taxes
The Customer agrees to pay FMI Works the additional full amount of any taxes over and above the Fees (including any applicable good and services tax, value-added tax or sales tax) and/or provide FMI Works with evidence of payment of all taxes.
In the event that withholding tax is payable in relation to any supply of Software, SaaS, Support Services or Professional Services under this Agreement, the Customer must increase the amount of any payment to FMI Works so that the amount actually received by FMI Works is no less than the Fee.
Suspension
If the Customer fails to pay any portion of an outstanding invoice for more than 60 calendar days from the date of the invoice, which are not the subject of a good faith dispute, FMI Works may, at its sole discretion, suspend any and all performance of its obligations under this Agreement or any Order, in whole or in part, until the outstanding invoice is paid.
Customer Data
Customer Data remains the property of the Customer at all times.
The Customer grants to FMI Works a right to use all Customer Data for the purposes of performing its obligations under this Agreement and any Order.
The Customer represents and warrants, and must ensure, that it has obtained all consents, approvals and licences required to provide the Customer Data (including any Personal Information) to FMI Works and for FMI Works to perform all of its obligations under this Agreement and any Order.
6 months following the expiry or termination of this Agreement, FMI Works will irretrievably destroy all Customer Data in its possession or control.
Privacy
Each party agrees to comply with the Privacy Act 1988 (Cth).
FMI Works will collect, use, store and disclose all Personal Information provided to it by the Customer in accordance with the Privacy Act 1988 (Cth) and its Privacy Policy.
Intellectual Property
Subject to the grant of rights under this Agreement (including any licences and sublicences), no Intellectual Property Rights of either party already existing prior to the commencement of this Agreement or subsequently brought into existence other than in the course of performing obligations under this Agreement or any Order, and any improvements, enhancements, modifications, or developments thereof are assigned or otherwise transferred under this Agreement.
FMI Works or its third party licensors retain ownership of all Intellectual Property Rights in the Solution. The Customer acknowledges that the Solution, including but not limited to its structure, organisation and source code, constitutes valuable trade secrets of FMI Works.
All Intellectual Property Rights in all elements of any Deliverable and any Intellectual Property Rights arising in the course of this Agreement (Developed IP) will vest in and belong to FMI Works or its third party licensors. The Customer agrees to do all things necessary to transfer to and vest in FMI Works or its third party licensors, all right, title and interest in any Intellectual Property Rights in the Developed IP.
FMI Works will defend and indemnify the Customer against any losses or liabilities arising from any third party claim against the Customer that the use of the current version of the Software or SaaS, in accordance with this Agreement and any associated Documentation infringes any Intellectual Property Right of that third party, provided that the Customer must:
promptly notify FMI Works in writing after it becomes aware of the claim;
provide FMI Works with sole control of the defence and all related settlement negotiations (other than negotiations that may impose an obligation or liability on the Customer);
not take a position that is adverse to FMI Works; and
provide FMI Works all reasonable assistance in the defence and settlement of any such claim.
In the event the Software or SaaS is held, or is believed by FMI Works, to infringe the Intellectual Property Rights of that third party, FMI Works may, at its option and expense:
modify the Software or SaaS to be non-infringing; or
if acceptable to the Customer, obtain for the Customer all rights required to continue using the Software or SaaS.
The Customer will defend and indemnify FMI Works against any losses or liabilities arising from any third party claim against FMI Works, to the extent that the claim arises from or is in connection with:
modifications of the Software or SaaS not authorised by FMI Works;
the combination of the Software or SaaS with an item not supplied by FMI Works;
the use of the Software or SaaS in a manner not intended or authorised by FMI Works’ documentation or this Agreement;
all use and content of the Customer Data used or transmitted by the Customer in connection with the use of the Software or SaaS; or
any methodology, specification, direction, material or information provided by the Customer to FMI Works.
Confidential Information
A recipient of Confidential Information must keep that Confidential Information secret and confidential at all times and not disclose it, or permit it to be disclosed without the discloser’s prior written consent.
The obligation of confidence in clause 15(a) extends to Confidential Information provided to or obtained by a recipient before entering into this Agreement.
A recipient of Confidential Information may only use the Confidential Information of the discloser for the purposes of performing its obligations or exercising its rights under this Agreement.
A recipient may only disclose the discloser’s Confidential Information to the recipient’s Personnel (but in each case excluding a competitor of FMI Works) who have a specific need to access the Confidential Information and are bound by confidentiality obligations no less strict than this clause 15.
A recipient may disclose Confidential Information of the discloser to the extent required by law or regulations, subject to the recipient providing the discloser reasonable notice of any proposed disclosure (if permitted by law) to enable the discloser to seek a protective order or other remedy to prevent or limit the disclosure.
Upon termination or expiry of this Agreement, or otherwise upon request by the discloser, the recipient must, at the discloser’s election, return, delete, erase or otherwise destroy any Confidential Information in the recipient’s possession or control and provide written certification of its compliance with this clause 15(f).
Provided that the recipient continues to comply with this clause 15, the recipient may retain Confidential Information:
that is included in its board papers;
that the recipient is required by law to retain, or needs to retain to defend itself in any proceeding brought or threatened against it at the time the Confidential Information must be returned or destroyed;
that the recipient is required to retain for its reasonable internal credit, risk, insurance, taxation or record-keeping purposes;
if the recipient is the Customer, to the extent the Confidential Information is incorporated in Software for which FMI Works has granted a licence for ongoing use;
if the recipient is the Customer, to the extent the Confidential Information is incorporated in a Deliverable or is reasonably necessary for the Customer to continue using the Deliverable, subject to the Order.
Each party acknowledges that any breach of this clause 14 may result in damage to the other party for which monetary damages may not provide sufficient relief. Each party is entitled to enforce its rights under this clause by specific performance or other injunctive proceedings.
Warranties and Representations
FMI Works warrants that the Services will be provided in a professional manner with due care and diligence, by suitably competent and qualified staff.
Other than as expressly stated in this clause 16, FMI Works does not make any warranties or representations of any kind (whether express or implied, or written or oral) to the Customer or any third party with respect to any Software, SaaS, Deliverables, Support Services or Professional Services provided under this Agreement or any Order.
Without limitation to clause 16(b), all other express or implied warranties, statutory guarantees or representations of any kind are expressly excluded and disclaimed, to the extent permitted by law.
FMI Works specifically disclaims all liability for, and does not make any warranty or representation:
that the Software, SaaS, Work Product, Support Services or Services may be customised to satisfy all of the Customer’s requirements or intended purposes;
that the Customer’s use of the Software, SaaS, Work Product or Support Services will be error-free or uninterrupted; or
that the Software, SaaS or Work Product are designed, intended for use or should be relied upon in environments requiring fail-safe performance, including without limitation, as part of a life support, building or real property security or maintenance, critical or emergency process or service, or that the Services area substitute or replacement for expert or professional decisions or judgment.
The Customer’s sole and exclusive remedy for FMI Works’ breach of any warranty is limited, at the option of FMI Works, to FMI Works re‑supplying the Software, SaaS, Deliverables, Support Services or Professional Services again (as the case may be) or the payment of the reasonable costs of having the Software, SaaS, Deliverables, Support Services or Professional Services supplied again (as the case may be), subject to the Customer notifying FMI Works in writing of such breach within 10 Business Days of the breach.
Limitation of Liability
Each party’s total liability for any Loss, however caused (whether in contract, tort (including negligence), statute or otherwise), incurred by the other party in connection with each Order is limited, in the aggregate, to an amount equal to the Fees paid by the Customer to FMI Works in connection with the Order.
FMI Works will not be liable for any defect, failure or other deficiency in the Solution, or their operation, to the extent caused or contributed to by:
circumstances beyond the reasonable control of FMI Works, including a Force Majeure Event;
use of the Solution in conjunction with any equipment, configuration, network or environment exceeding or otherwise inconsistent with any specifications specified in the Documentation or otherwise agreed in writing by the parties;
changes made to the hardware or software used by the Customer (including changes made by third parties);
API withdrawal;
user error or vexatious users;
online attacks, viruses or malware; or
causes that neither party could reasonably have foreseen.
To the extent permitted by law, the liability of a party to this Agreement to the other party under or in connection with this Agreement will be reduced proportionately by the extent, if any, to which the acts or omissions of the first party or those of any of its Personnel caused or contributed to the relevant Loss suffered or incurred by the second party.
In no event will either party be liable to the other party for any Consequential Loss arising out of or in connection with this Agreement or any Order.
If the Competition and Consumer Act 2010 (Cth) or any other legislation states that there is a guarantee in relation to any good or service supplied by FMI Works in connection with this Agreement, and FMI Works’ liability for failing to comply with that guarantee cannot be excluded but may be limited, clauses 17(a) and 17(b) (and any inconsistent limitation expressed elsewhere in this Agreement) do not apply to that liability and instead FMI Works’ liability for such failure is limited to (at FMI Works’ election), in the case of a supply of goods, replacement of the goods or paying the cost of having the goods repaired or replaced or supplying equivalent goods or repairing the goods, or in the case of a supply of services, supplying the services again or paying the cost of having the services supplied again.
The liability cap in clause 17(a) and liability exclusion in clause 17(d) do not apply to liability for:
any breach of clause 3(a) or 4.1(a);
any indemnity granted under clause 14; or
any breach of confidentiality obligations.
Dispute Resolution
If a dispute or disagreement arises under this Agreement (Dispute), a party must not commence court proceedings unless it has first complied with this clause.
A party must give written notice (Notice) to the other party that a Dispute exists specifying the nature, and providing details of the Dispute.
Within seven (7) days of service of a Notice, the parties must hold discussions in good faith in an attempt to resolve the Dispute. If the Dispute is not resolved within fourteen (14) days of service of the Notice, then the parties must refer the Dispute to the appropriate senior officer of each party who has authority to resolve the dispute and who must promptly meet and endeavour to resolve the Dispute. If the Dispute has not been resolved within twenty one (21) days of service of the Notice, then the parties must refer the Dispute to mediation and if not resolved in that forum, either party may then commence court proceedings.
A party may commence court proceedings at any time where that party seeks urgent interlocutory relief.
Force Majeure
Neither party will be liable or in breach of this Agreement for any failure or delay in performing any obligation under this Agreement (other than an obligation to pay money) by reason of a Force Majeure Event.
A party will be relieved of its obligations under this Agreement to the extent any such obligation is prevented by a Force Majeure Event. Such relief will extend for the duration of that Force Majeure Event and for a reasonable period of time following the end of the Force Majeure Event to allow for the party to resume the performance of its obligations.
Termination
Termination of the Agreement
Either party may immediately terminate this Agreement and any one or more Orders by notice in writing to the other party if:
the other party commits a material breach of this Agreement and:
such breach is incapable of remedy; or
fails to remedy that breach within 30 days of receiving written notice of that breach from the non-breaching party; or
an Insolvency Event occurs in respect of the other party.
FMI Works may immediately terminate this Agreement and any one or more Orders by notice in writing to the Customer if:
the Customer fails to make payment of any amount under this Agreement or an Order (including any Fees or Expenses) by the due date for payment; and
payment of the amount remains outstanding 30 days after receiving written notice of the overdue amount from FMI Works.
Termination of an Order
Either party may terminate an Order on written notice at least 30 days’ prior to date of each automatic renewal of the Order in accordance with clause 2.2(b) or 2.2(c).
Transition assistance
In the event of termination or expiry of this Agreement, the Customer may, at the Customer’s cost, request assistance reasonably required by the Customer to allow the Customer to smoothly transition to a replacement provider of any software or services similar to the Software, SaaS and related services (Transition Services), subject to:
the ongoing payment of Fees in accordance with clause 11 where any Software, SaaS, Deliverables, Support Services or Professional Services continue to be provided; and
the parties entering into an Order for any additional Professional Services required for the transition assistance,
and the Term will be extended until all such Transition Services have been delivered by FMI Works.
Consequences of termination
Upon termination of this Agreement, the Customer must immediately cease all use of the Software, SaaS, Deliverables and Support Services under the Order (as the case may be) and any related Documentation, unless expressly agreed otherwise under the Order.
Upon expiration or termination of this Agreement:
no further Orders may be entered into under this Agreement; and
each party must return or irretrievably destroy (as directed by the other party) the other party’s Confidential Information within 30 days from the date of termination (unless that Confidential Information constitutes Customer Data, in which case clause 12(d) will apply).
Termination of this Agreement does not affect the right of any party to pursue remedies available to it or the obligation of the Customer to pay all amounts payable under this Agreement.
Survival
Clauses 1, 6, 7, 11, 12, 13, 15, 16, 17, 18, 20, 21 and 22, any indemnities, and any provision of this Agreement which is expressly or by implication intended to come into force or continue on or after the termination or expiry survive termination or expiry of this Agreement.
NOTICES
Notices will be deemed received:
if hand delivered, on the date of delivery;
if sent by pre-paid post, 3 Business Days after the date of posting; or
if sent by facsimile or electronic mail, on the day the transmission is effected, provided the sender does not receive a report identifying that the transmission has been unsuccessful.
GENERAL
Variations
The terms and conditions of this Agreement may be amended from time to time by FMI Works by providing the Customer with at least 30 days prior written notice, in which case the amended terms and conditions will be made available at https://www.fmiworks.com/terms-and-conditions.
If, upon receiving the notice referred to in clause 22.1(a), the Customer does not agree to the amended terms and conditions, the Customer will have 30 days from receipt of such notice to terminate this Agreement, and all Orders made under it. If the Customer does not terminate this Agreement, and all Orders made under it, within such 30 day period, the Customer will be taken to have agreed to the amended terms and conditions.
If the Customer terminates this Agreement, and all Orders made under it, in accordance with clause 22.1(b), in circumstances where the Customer has paid Fees for SaaS or Support Services in advance, then the Customer will be entitled to a pro rata refund of those Fees for any unused portion.
Entire agreement
This Agreement constitutes the entire agreement between the parties, to the exclusion of all other terms and conditions, and supersedes all prior discussions, negotiations, understandings and agreements in respect of its subject matter.
Assignment
The Customer may assign or novate its rights under this Agreement to a Customer Group member at any time, subject to providing written notice to FMI Works. The Customer must not otherwise assign, novate or sublicense its rights under this Agreement without the prior written consent of FMI Works.
FMI Works can assign novate or sublicense its rights under this Agreement at any time without requiring the consent of the Customer.
Relationship of the parties
This Agreement does not create any partnership, joint venture, agency, fiduciary or employment relationship between the parties.
Subcontracting
FMI Works may subcontract its obligations under any Order without the Customer’s prior written consent.
FMI Works is responsible for all acts and omissions of its subcontractors and the subcontractor’s Personnel, as if those acts and omissions were acts and omissions of FMI Works itself.
Non-solicitation
During the term of this Agreement and for a period of not less than 6 months thereafter, neither party may directly or indirectly through a Related Body Corporate solicit, or otherwise employ, any employee or contractor of the other party, unless:
written approval has been obtained from the other party; or
the person in question has:
ceased to be employed or contracted by the other for a period of not less than 6 months; or
responded to a published advertisement of employment with the other party (or with any of its Related Bodies Corporate) or has independently approached the first party for employment or with its Related Bodies Corporate.
Currency
All monetary amounts specified in this Agreement are Australian dollars, unless specified otherwise.
Jurisdiction
This Agreement is governed by and will be construed in accordance with the laws of Victoria, Australia and the parties submit to the jurisdiction of the courts of that State.
No Reliance
Customer acknowledges that, in entering this Agreement, it has not relied on any statement, warranty, representation or other promise of any nature not contained in this Agreement, or any prior conduct of FMI Works.
No waiver
Any waiver or election in relation to a provision of, or a right or remedy arising under, this Agreement (including this clause) must be in writing and signed by the party granting the waiver. A failure or delay in exercise or partial exercise of a right, power, authority, discretion or remedy arising from a breach of, or default under, this Agreement does not result in a waiver of that right, power, authority, discretion, or remedy.
Counterparts
This Agreement may be executed in any number of counterparts. All counterparts, taken together, constitute one instrument. A party may execute this Agreement by signing any counterpart.
Additional Definitions
Capitalised terms not otherwise defined in the body of this Agreement have the meanings given below:
Acceptable Use Policy means an acceptable use policy applicable to the SaaS.
Acceptance Criteria means the criteria that an Assessable Item must meet in order for that Assessable Item to be accepted by the Customer.
Acceptance Testing has the meaning given at clause 10(b).
Agreement means this master IT supply agreement and its schedules, including all variations and addenda.
Agreement Commencement Date means the Order Commencement Date of the first Order entered into under this Agreement by the Customer.
Assessable Item means a Deliverable or the result of Professional Services that is to be subjected to Acceptance Testing.
Business Day means a day other than a Saturday, Sunday or public holiday in Victoria, Australia.
Confidential Information means all information, designs, drawings, software, the Solution (including but not limited to its structure, organisation, and source code), know-how, intellectual property, methods, processes, procedures, systems, designs, techniques, manuals, instructions and other materials supplied or made available by a party in the course of this Agreement, including but not limited to financial, legal, trading, supplier, customer or marketing information, which is not in the public domain or already known by the recipient of the Confidential Information(other than as a result of breach of confidence).
Consequential Loss includes loss of profits, loss of revenues, Loss arising in connection with the matters disclaimed in clauses 16 and 17(b), loss of use of the Solution, loss of reputation, loss of goodwill, loss of actual or anticipated savings, lost opportunities (including opportunities to enter into arrangements with third parties), Loss in connection with claims against a Customer, and loss or corruption of data (including any costs associated with recovering and reinstating any data), and any indirect or consequential loss of whatsoever nature (including losses that do not flow naturally, that is, according to the usual course of things, from the relevant breach, act or omission).
Customer means the party specified as such in the Order and its successors and permitted assigns.
Customer Data means data provided by the Customer to FMI Works, or which is generated from the Customer’s data in the course of using the Software or SaaS, or the performance of the Support Services or Services.
Customer Group means the Customer and its Related Bodies Corporate.
Deliverable means any work item or material to be provided to the Customer by FMI Works in accordance with the applicable Order.
Documentation means any technical information and user manuals provided by FMI Works under the applicable Order or made available via the Online Help Centre at https://help.fmiworks.com/knowledge, in relation to the Software or SaaS and any associated Support Services.
Expenses means of the cost of any airfares, car rental, taxi fares or other ground transportation costs, parking, accommodation, meals or other incidental costs incurred by FMI Works in providing the Services, to be charged to the Customer at cost.
Fees means the fees payable by the Customer to FMI Works in relation to the Solution specified in the applicable Order. Fees also include subsequent renewals in accordance with Clause 11.1(b).
Force Majeure Event means any occurrence of fire, flood, earthquake or act of God, war, riot, national emergency, civil disorder, rebellion, revolution, strike, labour dispute, any circumstances relating to an epidemic or pandemic, failure of a third party supplier, law taking effect after the date of this Agreement, or any other event outside the control of the party that prevents the performance of any obligation.
Insolvency Event means any of the following events:
a controller (as defined in the Corporations Act 2001 (Cth)) is appointed to the party, or over any of the property of the party;
the party becomes bankrupt;
a controlling trustee is appointed to the party, or over any of the property of the party;
the party or the party’s property becomes subject to a personal insolvency arrangement under part X Bankruptcy Act 1966 (Cth) or a debt agreement under part IX of that Act;
the party is unable to pay its debts when they become due and payable;
the party ceases to carry on business; or
any event happens in Australia or any other country or territory in respect of a party that is similar to any of the events or circumstances referred to in this definition.
Any event that takes place as part of a solvent reconstruction, amalgamation, merger, or consolidation, on terms approved in writing by the other party beforehand and in compliance with those terms is excluded from this definition.
Intellectual Property Rights means any intellectual or industrial property rights throughout the world, including all copyright and analogous rights, all rights in relation to inventions or discoveries (including patent rights), designs, registered and unregistered trade marks (including service marks), trade names, brand names, indications of source or appellations of origin, know-how, software, circuit layouts and all other rights throughout the world resulting from intellectual activity in the industrial, scientific or artistic fields. These rights include all rights in all applications to register these rights, and all renewals and extensions of these rights.
Loss means any loss, damage, liability, charge, outgoing, cost, payment or expense of any nature or kind.
On-Premise Environment means any in-house environment whereby software and resources are deployed within the Customer's own on-premise network and information technology intrastructure, without the use of any form of cloud (including hybrid cloud) computing, as-a-service, host or virtual technology.
Order has the meaning given at clause 1.2(c).
Order Commencement Date means the date the Order comes into effect in accordance with clause 1.2(c).
Order Term has the meaning given at clause 2.2.
Personal Information has the meaning given in the Privacy Act1988 (Cth).
Personnel means a party’s officers, employees, contractors, agents, subcontractors and professional advisors, including the officers, employees, contractors, agents and subcontractors of any of the foregoing (to the extent applicable).
Privacy Policy means FMI Works’ privacy policy, made available at https://www.fmiworks.com/privacy-policy as updated from time to time.
Professional Services means the professional services provided in accordance with the applicable Order.
Related Body Corporate has the meaning given in the Corporations Act 2001 (Cth).
SaaS means the software as a service specified in an Order, but excluding any Third Party Materials.
Software means on-premise software (including any server-side and client-side software) licensed and delivered under the applicable Order, but excluding any Third Party Materials.
Solution means any combination of the Software, SaaS, Deliverables, Third Party Materials, Support Services, Professional Services, or Documentation provided by FMI Works or its third parties.
Support Services Guide means the support services guide made available at https://www.fmiworks.com/support-services-guide as may be amended by FMI Works from time to time.
Support Services means FMI Works’ standard technical support and maintenance services for the Software (including the provision of Updates and Upgrades) and SaaS, provided under the applicable Order.
Term has the meaning given at clause 2.1.
Test Period has the meaning given at clause 10(b).
Third Party Materials means third party software (including open source software), third party cloud infrastructure or other third party items made available pursuant to an Order.
Updates means a subsequent release, correction or revision of the Software which FMI Works may make generally available to its customers as part of the Support Services.
Upgrade means a subsequent release of the Software containing significant improvements or additional functionality, which FMI Works may make generally available to its customers as part of the Support Services.
FMI Works is the supplier of the Software, SaaS, Support Services, and Professional Services provided to Customer under this Agreement, where FMI Works is a registered business name of FMI Software Pty Ltd, where it carries on its predominant business at Suite 14B 1100 Middle Head Road, Mosman, NSW, AUSTRALIA 2088.
