STANDARD TERMS AND CONDITIONS FOR SERVICES & SOFTWARE

These terms and conditions apply to all Services to be provided by Clockwork Software Pty Limited ABN 16 130 167 636 (“Clockwork”) of Unit 8, 183 High Street North Sydney, NSW 2060, Australia to the Customer named in the Statement of Work document (“SOW”) agreed to and signed by Clockwork and that Customer except to the extent otherwise set out in the SOW.

Version 1.1,18 July 2022

1. Definitions

1.1 In the Agreement, unless the contrary intention appears:

"Additional Charges" means fees and expenses over and above those specified in the SOW and which are in accordance with Clockwork's standard time and materials rates in effect from time to time;

"Agreement" means the agreement between the Parties for the provision of Services being the SOW and these Terms and Conditions;

"Charges" means the fees and expenses payable by the Customer to Clockwork under the Agreement including any Additional Charges;

"Confidential Information" means any and all information which is disclosed by a party (“Discloser”) to the other (“Recipient”) verbally, electronically, visually or in written or other tangible form which is identified as, or by its nature reasonably understood to be, confidential or proprietary.  Clockwork’s Confidential Information includes its policies, strategies, the Deliverables, the terms and conditions of the Agreement including pricing and any proposals or other documents whether or not disclosed prior to or after the date of the SOW.

Customer” means the customer named in the SOW.

"Deliverable" means where specified in the SOW, any specific result or outcome of the Services to be provided to the Customer and includes any associated materials developed by Clockwork pursuant to the SOW;

"Force Majeure" means a circumstance beyond the reasonable control of a Party which results in that Party being unable to observe or perform on time an obligation (other than an obligation to pay money). Such circumstances include but are not be limited to:

    1. acts of God, lightning strikes, earthquakes, floods, storms, explosions, fires and any natural disaster;
    2.  acts of war, acts of public enemies, terrorism, riots, civil commotion, malicious damage, sabotage and revolution;
    3. strikes; and
    4. the acts or omissions of the other Party;

"Intellectual Property Rights" means any industrial or intellectual property rights including copyright, trade mark, design, patent, semiconductor or circuit layout rights;

"Party" means either Clockwork or the Customer as the context dictates;

"Software" means, software owned by Clockwork, which is either used in providing the services, integrated into the deliverables or licensed to the Customer under this agreement.

"Services" means the services specified in the SOW;

"Terms and Conditions" means these Clockwork standard terms and conditions for the provision of Services.

2. Interpretation

2.1 In the Agreement, unless the contrary intention appears:

  1. the clause headings are for convenient reference only and have no effect in limiting or extending the language of the provisions to which they refer;
  2. a cross reference to a clause number is a reference to its subclauses;
  3. words in the singular number include the plural and vice versa;
  4. words importing a gender include any other gender;
  5. a reference to a person includes a partnership and a body, whether corporate or otherwise;
  6. a reference to a clause is a reference to a clause or subclause of these Terms and Conditions or the SOW as the context requires;
  7. where a word or phrase is given a particular meaning, other parts of speech and grammatical forms of that word or phrase have corresponding meanings;
  8. unless otherwise stated in the SOW, monetary references are references to Australian currency.

3. Services

3.1 Clockwork will provide the Services and any Deliverable in accordance with the Agreement. If there is any conflict or inconsistency between the SOW and these Terms and Conditions, the SOW prevails to the extent of that inconsistency.

3.2 Clockwork may exercise its independent discretion as to the most appropriate and effective manner of providing the Services and of satisfying the Customer's expectations of those Services.

3.3 The person named in the SOW as the Clockwork Representative, will be assigned to the Customer to handle all Customer queries, issues and any other matters relating to the Services on a needs by basis. Clockwork may advise the Customer of a change to its nominated representative from time to time.

3.4 Any services requested by the Customer which are not described in the SOW will be provided at Clockwork’s discretion and may be subject to an Additional Charge.

3.5 Timeframes set out in the SOW are estimated timeframes and provided as a guideline only. Clockwork will make all reasonable efforts to adhere to such timeframes. Any delay by Clockwork in complying with a timeframe will not discharge the obligation of the Customer to pay the Charges invoiced by Clockwork.

3.6 In the event that:

  1. the provision of the Services is delayed;
  2. Clockwork is required to supply the Deliverables in circumstances other than those expressly or reasonably assumed or contemplated by the SOW; or
  3. there is a change in the timing or complexity of the Services;

for reasons other than a breach of the Agreement by Clockwork, then Clockwork may make Additional Charges on a time and materials basis in respect of additional time required or resources reasonably utilised in order to fulfill its obligations.

3.7 Subject to clause 4, Services (and all Deliverables) will be deemed accepted by the Customer upon completion of the Services in accordance with the SOW.

4. Acceptance

4.1 This clause only applies if it is specified in the SOW that a Deliverable is to be subject to Acceptance Tests.

4.2 Unless otherwise agreed between the Parties, the Customer must test the Deliverable in accordance with the Acceptance Criteria within the period specified in the SOW (or such other period as is agreed between the Parties).

4.3 Clockwork must provide all reasonable assistance to enable the Customer to conduct the Acceptance Tests.

4.4 The Customer will be responsible for the preparation of all necessary acceptance test data specified in or relevant to the Acceptance Criteria.

4.5 Clockwork will be entitled to observe and, to the extent considered reasonable by Clockwork, participate in the conduct of the Acceptance Tests.

4.6 In the event the Customer fails to complete the Acceptance Tests within the timeframe specified in the SOW for reasons other than delay caused solely by Clockwork, the Customer will be deemed to have accepted the Deliverable.

4.7 Upon completion of the Acceptance Tests:

  1. Clockwork will, if requested by the Customer, provide a written summary of the Acceptance Tests and the results achieved during the Acceptance Tests; and
  2. the Customer will within two (2) days (or such other period as is specified in the Acceptance Criteria) provide Clockwork with written acknowledgment of acceptance of the Deliverable or a notice outlining any failure of the Deliverable to meet the Acceptance Criteria.

4.8 If the Customer has not provided the written acknowledgement of acceptance and has not notified Clockwork of any failure of the Deliverable to meet the Acceptance Criteria, within the timeframe required by clause 4.7(b), then the Customer will be deemed to have accepted the Deliverable and the Services.

4.9 If the Customer provides Clockwork with a notice of a failure of a Deliverable to meet the Acceptance Criteria, Clockwork must use reasonable endeavours to promptly rectify the failure and notify the Customer when rectification is completed. The Customer will then repeat the Acceptance Tests.

5. Customer’s Obligations

5.1 Where the Services are to be provided on Customer’s backend or their physical premises:

  1. the Customer will provide a safe workplace and all necessary access, equipment, materials, information, facilities, services and accessories reasonably required by Clockwork for the performance of the Services;
  2. Clockwork will comply with the Customer’s reasonable directions and such reasonable policies and procedures as are provided to Clockwork;
  3. the Customer must provide a suitably qualified or informed representative, agent or employee to liaise with Clockwork personnel
  4. Customer must give proper access including passwords and administrator access where necessary to data, backend systems and equipment as reasonably required by Clockwork in order to provide the Service.

5.2 The Customer contact nominated in the SOW will be Clockwork’s primary contact unless Clockwork is otherwise notified in writing by the Customer and the Customer contact must be authorised to:

  1. advise Clockwork on project requirements, access, security procedures and any other matter within the Customer's knowledge or control which will assist Clockwork in complying with its obligations under the Agreement;
  2. make timely decisions on behalf of the Customer as requested by Clockwork to move the Services forward.

5.3 In addition to the person referred to in clause 5.2, the Customer must provide sufficiently qualified and knowledgeable resources who are capable of performing any Customer obligations and such other tasks as may be reasonably required to facilitate the performance of the Services. Unless otherwise stated in the SOW, all project management and achievement of Deliverable in relation to Services is the responsibility of the Customer.

5.4 The Customer acknowledges and agrees that the performance of the Customer’s obligations is material to Clockwork’s ability to provide the Services. Whilst Clockwork will make all reasonable efforts to work around any failure on the part of the Customer to perform its obligations, Clockwork may revise the SOW and or Charges, make any reasonable Additional Charges or suspend the SOW at its option, if the Customer’s failure to perform impacts on Clockwork’s ability to commence or proceed with the Services.

5.5 If the Customer discloses any personal information (as defined in the Privacy Act 1988) to Clockwork, the Customer warrants that it has complied with its obligations under the Privacy Act and that Clockwork is entitled to collect and use the personal information to the extent necessary to provide the Services without having to provide any disclosures or notifications to the individual concerned.

6. Charges

6.1 Charges are stated in the SOW, the Customer will be invoiced in accordance with the SOW.

6.2 Unless specified in the SOW Customer will pay the Charges upon invoicing prior to provision of Services or Software.

6.3 The Customer will reimburse Clockwork for all reasonable expenses incurred in performing the Services including but not limited to travel and living expenses. Upon the Customer’s request Clockwork will provide such supporting expense documentation and receipts as are kept in accordance with Clockwork’s internal expense reimbursement policy.

6.4 If the Customer disputes the whole or any portion of the amount claimed in an invoice submitted by Clockwork, the Customer must pay the portion of the amount stated in the invoice which is not in dispute and must notify Clockwork in writing (within seven days of receipt of the invoice) of the amount in dispute and the reasons for disputing that amount. If it is resolved that some or all of the amount in dispute was properly payable, then the Customer must pay the amount finally resolved together with interest on that amount in accordance with clause 6.8 such interest to be calculated from the due date for payment of the invoice.

6.5 Overdue payments will bear interest at the lesser of one percent (1%) per month or the maximum rate allowed under applicable law. Despite charging interest, if Charges are not paid within thirty (30) days Clockwork may, at its sole discretion suspend or terminate the Services and or terminate the Agreement by notice to the Customer.

7. Confidentiality

7.1 The Recipient must only use the Discloser’s Confidential Information for the purpose for which it was supplied.

7.2 The Parties will protect each other’s Confidential Information with at least the same degree of care and confidentiality that it uses to protect its own information that it does not wish disclosed to the public but not less than a reasonable standard of care.

7.3 The Recipient must not, without the prior written approval of the Discloser, disclose the Discloser's Confidential Information.

7.4 The Recipient is not in breach of clause 7. 1 in circumstances where it is legally compelled to disclose the Discloser's Confidential Information provided that the Recipient:

  1. notifies the Discloser of the requirement prior to disclosure;
  2. makes diligent efforts to avoid and or limit the disclosure;
  3. seeks confidential treatment of the information so required to be disclosed; and
  4. complies with any applicable protection order or equivalent.

7.5 Subject to clause 7.7, the Recipient must only disclose the Confidential Information to those employees, agents and any sub-consultants who are engaged in the performance of the Agreement or otherwise have a need to use or access the Confidential Information.

7.6 Each Party must take all reasonable steps to ensure that its employees, agents, and any sub-consultants engaged for the purposes of the Agreement, do not make public or disclose the Discloser's Confidential Information.

7.7 Clockwork may at any time require the Customer to arrange for its employees, agents or sub-consultants engaged in the performance of the Agreement to execute a suitable confidentiality deed. The Customer must arrange for all such deeds to be executed within the timeframe reasonably proposed by Clockwork.

7.8 Notwithstanding any other provision of this clause, Clockwork may disclose the terms of the Agreement (other than Confidential Information of a technical nature) to its related companies, solicitors, auditors, insurers and accountants.

7.9 The Recipient will have no confidentiality obligation with regard to information to the extent it is or becomes generally known to the public without any fault on the part of the Recipient.

7.10 The Recipient must return or destroy all Confidential Information as and when directed by the Discloser provided that Clockwork may retain a copy of any Confidential Information provided by the Customer in order to keep appropriate records and an audit trail of the Services performed.

7.11 It will not be a breach of clause 7 if Clockwork discloses to third parties that Clockwork is providing Services to the Customer.

7.12 This clause survives the termination of the Agreement.

8. Ownership of Deliverables

8.1 The Customer acknowledges that, unless and to the extent stipulated to the contrary in the SOW, Clockwork retains all Intellectual Property Rights associated with any Deliverables.

8.2 If the Customer has fully complied with the Agreement, and subject to any restrictions or fees specified in the SOW, Clockwork grants the Customer a non-exclusive and non-transferable licence to use the Deliverables but only for the purpose for which they were created.

8.3 If and to the extent it is provided in the SOW that title in the Deliverables is to vest in the Customer, then title only vests in the Customer when the Customer has paid the Charges due under the SOW in full. The Customer acknowledges that vesting of title in any Deliverables does not affect the Intellectual Property Rights in any pre-existing material (including but not limited to software, documentation and data) which is incorporated into the Deliverables, or any enhancements to this material which remains the property of Clockwork.

8.4 If requested by Clockwork, the Customer must issue a notice in a form approved by Clockwork to all employees and other authorised users of the Deliverables under its direction or control, advising such persons of the Customer's obligations under this clause and also advising of the possible civil and criminal consequences of a breach of this clause.

9. Software

9.1 This clause 9 & 10 shall only apply where Customer licenses Software from Clockwork under the SOW.

9.2 If the Customer licenses software from Clockwork under the SOW, it shall pay license fees and maintenance fees as specified in the SOW.

9.3 Customer shall pay all fees due under the SOW.

9.4 Subject to the Customer fulfilling all of its obligations under this agreement, Clockwork shall grant the Customer a non-exclusive, non-transferable licence for the Initial Licence Term as stated in the SOW.

9.5 At the sole discretion of Clockwork, the licence may be renewed for subsequent terms as agreed between the parties.

9.6 A licence renewal fee shall be payable in accordance with the SOW in the event the licence is extended pursuant to this clause.

9.7 The Customer may only use the licensed Software in accordance with the normal operating procedures as notified by Clockwork.

9.8 The Customer shall not copy, alter, modify or reproduce the Software except to the extent otherwise authorised by this Agreement.

9.9 In addition to any other remedies available to Clockwork under this Agreement or otherwise, any unauthorised use, alteration, modification, reproduction, publication, disclosure or transfer of the Software will entitle Clockwork to any available equitable remedy against the Customer.

9.10 Except to the extent specified to the contrary in this Agreement, Clockwork shall not be obliged to support the Software, whether by providing advice, training, error-correction, modifications, updates, new releases or enhancements or otherwise.

10. Copying & Modifications

10.1 Subject to subclause 2, the Customer shall not copy or reproduce the Software by any means or in any form without Clockwork's prior written consent.

10.2 The Customer may make copies of the Software for the purpose described in the SOW. The Customer shall acknowledge such copy as the property of Clockwork. The terms of this Agreement, with the necessary modifications, apply to the said copy.

10.3 The Customer shall not modify or alter the Software or merge all or any part of the Software with any other software without Clockwork's written permission.

10.4 If the Software is modified or altered by Clockwork, or by the Customer with the permission of Clockwork pursuant to subclause 1:

  1. the costs associated with the modifications or alterations or the costs arising out of the investigation of the effects of proposed modifications or alterations will be borne solely by the Customer; and
  2. the Customer will fully indemnify Clockwork against all liability which may be incurred by Clockwork if such modifications or alterations infringe any Intellectual Property Rights of a third person.

10.5 The Software as modified or altered remains the property of Clockwork in all respects, whether modified by the Customer, Clockwork or a third party and whether or not authorised pursuant to this Agreement. Specifically, the Customer shall if necessary assign to Clockwork all Intellectual Property Rights arising out of any modifications to the Software.

10.6 The Customer shall not reverse assemble or reverse compile or directly or indirectly allow or cause a third party to reverse assemble or reverse compile the whole or any part of the Licensed Software.

11. Implied terms and liability

11.1 Subject to clause 11.2, any term, condition or warranty which would otherwise be implied in the Agreement is hereby excluded.

11.2 Where legislation implies in the Agreement any term, condition or warranty, and that legislation avoids or prohibits provisions in a contract excluding or modifying the application of or exercise of or liability under such term, condition or warranty, then the term, condition or warranty is deemed to be included in the Agreement.

11.3 If Clockwork is liable to the Customer:

  1. under clause 11.2 for breach of a non-excludable implied term, condition or warranty; or
  2. under the Agreement and the Customer notifies Clockwork of its claim within ninety (90) days of the claim accruing;

then:

  1. to the extent permitted by law, the liability of Clockwork is limited, at the option of Clockwork, to one or more of the following:
    1. if the breach relates to goods:
      1. the replacement of the goods or the supply of equivalent goods;
      2. (the repair of such goods;
      3. the payment of the cost of replacing the goods or of acquiring equivalent goods; or
      4. the payment of the cost of having the goods repaired; and
    2. if the breach relates to services:
      1. the supplying of the services again; or
      2. the payment of the cost of having the services supplied again.

12. Limitation of Liability

12.1 Except as otherwise specifically provided in the Agreement and to the extent permitted by applicable law:

  1. Clockwork will not be liable for incidental, consequential, or special damages including, without limitation, lost data, revenues, or profits howsoever arising (including from negligence);
  2. if despite clause 11.3, Clockwork is otherwise liable to the Customer, Clockwork’s liability is limited to a maximum amount equal to the Charges paid by the Customer under the SOW to which the claim relates.

13. Termination

13.1 The Agreement will remain in effect until terminated by a Party under clause 13.2 or 13.3. For the avoidance of doubt, if the Agreement is terminated under clause 13.3, the SOW terminates notwithstanding that the Services may not have been completed.

13.2 Either Party may terminate the Agreement for convenience by giving sixty (60) days notice to the other Party provided that termination will not take effect until all Services under the uncompleted SOW have been completed and all amounts payable under the SOW have been paid to Clockwork.

13.3 Without limiting the generality of any other clause in the Agreement, a Party may terminate the Agreement immediately by notice in writing to the other Party if:

  1. the other Party is in breach of any term of the Agreement and such breach is not remedied within thirty (30) days of a notice of the breach;
  2. a Party becomes, threatens or resolves to become or is in jeopardy of becoming subject to any form of insolvency administration or is unable to pay its debts as and when they become due;
  3. a Party, being a partnership, dissolves, threatens or resolves to dissolve or is in jeopardy of dissolving.

13.4 If notice is given to the Customer pursuant to clause 13.3, Clockwork may, in addition to terminating the Agreement:

  1. repossess any of its property in the possession, custody or control of the Customer;
  2. retain any moneys paid;
  3. charge a reasonable sum for work performed in respect of which work no sum has been previously charged;
  4. be regarded as discharged from any further obligations under the Agreement; and
  5. pursue any additional or alternative remedies provided by law.

14. Force Majeure

14.1 Neither Party is liable for any delay or failure to perform its obligations (other than to pay money) under the Agreement if such delay is due to Force Majeure.

14.2 If a delay or failure of a Party to perform its obligations is caused or anticipated due to Force Majeure, the performance of that Party's obligations will be suspended.

14.3 If a delay or failure by a Party to perform its obligations due to Force Majeure exceeds sixty (60) days, either Party may immediately terminate the Agreement on providing notice in writing to the other Party.

14.4 If the Agreement is terminated pursuant to clause 14. 3, Clockwork must refund moneys previously paid by the Customer under the Agreement for Services not provided by Clockwork.

15. Disputes

15.1 If a difference or dispute arises between the Parties in connection with this Agreement, the Parties agree to use their reasonable endeavours to resolve the Dispute by discussions in good faith between the Parties. Any difference or dispute does not relieve the Customer of its obligation to pay Charges when they are due for payment.

16. Entire agreement

16.1 This Agreement constitutes the entire agreement between the Parties and supersedes all prior representations, agreements, statements and understandings, whether verbal or in writing. If the Customer issues a purchase order or other document covering the subject matter of this Agreement, it is agreed that such purchase order or other document is for the Customer’s internal purposes only and is not legally effective.

17. Assignment and novation

17.1 The benefit of this Agreement cannot be assigned by either Party without the written consent of the other Party.

18. Waiver

18.1 No right under this Agreement will be deemed to be waived except by notice in writing signed by each Party.

18.2 A waiver made by a Party under clause 18. 1 will not prejudice that Party’s rights in respect of any subsequent breach of the Agreement by the Customer.

18.3 Subject to clause 18. 1, any failure by a Party to enforce any clause of this Agreement, or any forbearance, delay or indulgence granted by that Party to the other, will not be construed as a waiver of any rights under this Agreement.

19. Variation

19.1 This Agreement can only be varied by an agreement in writing signed by both Parties provided that:

  1. only the Clockwork Representative nominated in the SOW can sign a variation to the details in the SOW; and
  2. variations to these Terms and Conditions must be signed by a duly authorised officer of Clockwork.

19.2 If either Party proposes to vary the Agreement, the proposing Party must submit a copy of the proposed variations to the other Party. The receiving Party will advise the proposing Party within four (4) normal working days of receipt of the variations that it accepts or rejects the variations.

19.3 If the receiving Party accepts the variations, the Parties must sign a variation to the Terms and Conditions or the SOW (as the case may be) in accordance with clause 19.1 incorporating the accepted variations.

19.4 A variation will not be effective until the Parties agree in writing as to:

  1. the effect of the variation, if any, upon the Charges; and
  2. the impact of the variation on the obligations of either Party under the Agreement.

The variations will only take effect when a variation is signed in accordance with clause 19.1.

19.5 If the receiving Party rejects the proposed variations or a variation is not signed, each Party will perform the Agreement in accordance with the unvaried terms.

20. Severability

20.1 If any provision of the Agreement is held invalid, unenforceable or illegal for any reason, the Agreement, remains otherwise in full force apart from such provisions which are deemed deleted.

21. Clockwork's rights

21.1 Any express statement of the rights of Clockwork under this Agreement is without prejudice to any other right of Clockwork expressly stated in this Agreement or existing at law.

22. Clockwork's status

22.1 Clockwork is an independent contractor and has no authority to act on behalf of or bind the Customer in any way.

23. Survival of agreement

23.1 Subject to any provision to the contrary, this Agreement enures to the benefit of and be binding upon the Parties and their successors, trustees, permitted assigns or receivers but does not enure to the benefit of any other persons.

23.2 The covenants, conditions and provisions of this Agreement which are capable of having effect after the termination of the Agreement remain in full force and effect following the termination of the Agreement.

24. General

24.1 This Agreement shall be governed by and construed under the laws of New South Wales, Australia and the parties accept the exclusive jurisdiction of the New South Wales Courts.

24.2 The Customer acknowledges that the Customer is not relying upon any representations or statements as to the subject matter of this Agreement except as specifically set out in this writing.

24.3 Any action against Clockwork under the Agreement must be brought within two years after the cause of action accrues.

24.4 All notices shall be in writing and shall be by personal delivery, facsimile or first class post, postage prepaid. Notices to the Customer shall be sent to its address in the SOW to the attention of the named Customer contact. Notices to Clockwork shall be sent to its address in the SOW attention: Company Secretary. Notices are effective on delivery in the case of personal delivery, on receipt in the case of facsimile if received on a business day or otherwise at the commencement of the first business day following transmission and five (5) days after mailing in the case of post.

24.5 This Agreement may be executed in counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement, provided that this Agreement shall be of no force and effect until the counterparts are exchanged.