back-to-back subcontractor agreement Kinetic IT Pty Ltd (ABN 97 072 941 943) Yawuru IT Services Pty Ltd (ACN 146 601 603
www.kineticit.com.au phone 1300 782 072 fax 1300 885 072 sydney . melbourne . perth . brisbane . darwin . adelaide
ABN 97 072 941 943
Subcontractor Agreement Commercial in confidence
1
RECITALS
3
2
DEFINITIONS
3
3
SERVICES
5
4
BACK-TO-BACK PROVISIONS
6
5
SUBCONTRACTOR’S SKILLS
6
6
LAWFUL DIRECTIONS
6
7
INTERESTS OF KINETIC IT
7
8
LOCATION OF SERVICES
7
9
SCHEDULING OF SERVICES
7
10
SECURITY
7
11
SUBCONTRACTOR’S STATUS
7
12
CHARGES
8
13
PAYMENT
8
14
TITLE IN MATERIALS
8
15
INTELLECTUAL PROPERTY
9
16
CONFIDENTIALITY
9
17
INSURANCE
12
18
LIABILITY AND INDEMNITY
12
19
TERMINATION
12
20
GST AND CLAIMS
13
21
FORCE MAJEURE
13
22
SUB-CONTRACTS
14
23
CONFLICT OF INTEREST
14
24
ENTIRE AGREEMENT
14
25
PRECEDENCE
14
26
ASSIGNMENT AND NOVATION
15
27
VARIATION OF RIGHTS
15
28
VARIATION
15
29
DISPUTES
15
30
CO-OPERATION
15
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Subcontractor Agreement Commercial in confidence
31
KINETIC IT’S RIGHTS
16
32
SURVIVAL OF AGREEMENT
16
33
SEVERABILITY
16
34
OPERATION OF INDEMNITIES
16
35
CONSENTS
17
36
GOVERNING LAW
17
37
NOTICES
17
38
GENERAL
18
SCHEDULE 1
19
CONTRACT DETAILS
19
SCHEDULE 2
23
SERVICES
23
SCHEDULE 3
24
CHARGES
24
SCHEDULE 4
25
ATTACHMENT 23-A LONG FORM SUBCONTRACTOR AGREEMENT APPENDIX 1
25 26
HEAD AGREEMENT PROVISIONS
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2
THIS AGREEMENT is made on 20 March 2014
BETWEEN: (i) Kinetic IT Pty Ltd ACN 072 941 943 (Kinetic IT); and (ii) Yawuru IT Services Pty Ltd 146 601 603 (the Subcontractor).
1
Recitals (i)
Kinetic IT has entered into an agreement (the Head Agreement) with a third party (the Customer) for the provision of IT outsourcing services.
(ii)
Kinetic IT requires a subcontractor to provide services in connection with the Head Agreement.
(iii)
the Subcontractor has represented that it has the requisite experience and skills to provide the services.
(iv)
Kinetic IT engages the Subcontractor, and the Subcontractor accepts the engagement, subject to the terms and conditions set out below.
The parties agree as follows:
2
Definitions In this Agreement, unless the contrary intention appears: Agreement means this agreement for the provision of back-to-back services on a subcontractor basis Business Day means: (i)
(ii)
for determining when a notice, consent or other communication is given, a day that is not a Saturday, Sunday or public holiday in the place to which the notice, consent or other communication is sent; and for any other purpose, a day that is not a Saturday, Sunday or public holiday in Perth.
Change of Control means for a corporation, a change in: (i)
control of the composition of the board of directors of the corporation.
(ii)
control of more than half the voting rights attaching to shares in the corporation; or
(iii)
control of more than half the issued shares of the corporation (not counting any share which carries no right to participate beyond a specified amount in the distribution of either profit or capital).
Charges means the charges payable by the Kinetic IT to the Subcontractor as specified in Schedule 3, exclusive of GST. Confidential Information has the meaning given by clause 16.1.
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Customer means the customer with whom Kinetic IT has entered into the Head Agreement. Deliverable means a product or outcome or related material to be achieved by the Subcontractor pursuant to this Agreement, more particularly set out in 0. Force Majeure Event means any occurrence or omission as a direct or indirect result of which the Party relying on it is prevented from or delayed in performing any of its obligations (other than a payment obligation) under this Agreement and that is beyond the reasonable control of that Party, including forces of nature, industrial action, and action or inaction by a government agency. GST means: (i)
the same as in the GST Law.
(ii)
any other goods and services tax, or any tax applying to this transaction in a similar way; and
(iii)
any additional tax, penalty tax, fine, interest or other charge under a law of such a tax.
GST Law means the same as GST law in A New Tax System (Goods and Services Tax) Act 1999 (Cth). Head Agreement means the agreement between Kinetic IT and the Customer, further particulars of which are set out in Schedule 1. Intellectual Property means all present and future rights conferred by statute, common law or equity in or in relation to any copyright, trademarks, designs, patents, circuit layouts, plant varieties, business and domain names, inventions, and other results of intellectual activity in the industrial, commercial, scientific, literary or artistic fields. Materials means materials associated with the Deliverables which are to be developed by the Subcontractor pursuant to this Agreement. Party means either Kinetic IT or the Subcontractor as the context dictates. Restraint Period means the period specified in Schedule 1, during which a Party must refrain from soliciting for employment any person who is employed or contracted by the other Party. Schedule means a schedule to this Agreement. Services means the services to be provided by the Subcontractor as specified in 0. Subcontractor includes the officers, employees, agents and sub-contractors of the Party so specified in this Agreement. Term means the period defined in Schedule 1 clause 2
2.1
The following rules also apply in interpreting this document, except where the context makes it clear that a rule is not intended to apply: (i)
A reference to: a)
legislation (including subordinate legislation) is to that legislation as amended, reenacted or replaced, and includes any subordinate legislation issued under it.
b)
a document or agreement, or a provision of a document or agreement, is to that document, agreement or provision as amended, supplemented, replaced or novated.
c)
a party to this Agreement or to any other document or agreement includes a permitted substitute or a permitted assign of that party.
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2.2
2.3
d)
a person includes any type of entity or body of persons, whether or not it is incorporated or has a separate legal identity, and any executor, administrator or successor in law of the person; and
e)
anything (including a right, obligation or concept) includes each part of it.
(ii)
a singular word includes the plural, and vice versa.
(iii)
a word which suggests one gender includes the other genders.
(iv)
if a word is defined, another part of speech has a corresponding meaning.
(v)
if an example is given of anything (including a right, obligation or concept), such as by saying it includes something else, the example does not limit the scope of that thing.
(vi)
the word agreement includes an undertaking or other binding arrangement or understanding, whether or not in writing.
(vii)
the recitals to this Agreement do not form part of the Agreement.
(viii)
headings are for convenience only, and do not affect interpretation.
If the day on or by which a person must do something under this document is not a Business Day: (i)
if the act involves a payment that is due on demand, the person must do it on or by the next Business Day; and
(ii)
in any other case, the person must do it on or by the previous Business Day.
In the event of any conflict or ambiguity between any of the following documents, the priority of the documents will be as follows (listed in descending order of precedence): (i)
the special conditions, if any, set out in Schedule 1;
(ii)
the provisions in clauses 1 to 38 of this Agreement;
(iii)
subject to paragraph 2.3 (i), the schedules to this Agreement; and
(iv)
any attachments or appendices to a schedule.
3
Services
3.1
The Subcontractor will provide the Services described in 0.
3.2
The Subcontractor will supply the Deliverables and otherwise complete the Services within the timeframe specified in 0.
3.3
Subject to otherwise complying with its obligations under this Agreement, the Subcontractor will exercise its independent discretion as to the most appropriate and effective manner of providing the Services and satisfying Kinetic IT's expectations of those Services.
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4
Back-to-Back Provisions
4.1
To the extent specified in Schedule 1, the provisions of the Head Agreement (the specified provisions) will have back-to-back application to this Agreement.
4.2
For the purposes of clause 4.1, back-to-back application means that: (i)
the specified provisions will be deemed incorporated into this Agreement;
(ii)
the specified provisions will be interpreted in the context of this Agreement as if any reference to the Customer were a reference to Kinetic IT and any reference to Kinetic IT were a reference to the Subcontractor;
(iii)
any wording contained within the specified provisions which obviously has no application to this Agreement will not be deemed incorporated into this Agreement;
(iv)
the specified provisions, once incorporated into this Agreement, will be interpreted in the context in which they are used in the Head Agreement;
(v)
to the extent that interpretation of the specified provisions necessitates in turn a reference to the definitions or interpretative provisions of the Head Agreement, the specified provisions will be interpreted accordingly; and
(vi)
to the extent of any inconsistency between the specified provisions and any other clause of this Agreement, the specified provisions will prevail.
4.3
The Subcontractor must comply with the special conditions, if any, set out in Schedule 1.
5
Subcontractor’s Skills
5.1
The Subcontractor agrees that its Services pursuant to this Agreement will be provided solely by those persons listed in 0.
5.2
The Subcontractor will perform the Services in a proper, workmanlike and professional manner and will ensure at all times that its conduct will not bring any discredit upon Kinetic IT or cause any nuisance or disruption to Kinetic IT or the Customer.
5.3
Without limiting the foregoing, the Subcontractor warrants that it possesses and will deploy the specific skills and experience relevant to the Services as described in 0.
5.4
The Subcontractor warrants that all materials and facilities owned or controlled by Kinetic IT which are utilised by the Subcontractor in the course of providing the Services will be maintained by the Subcontractor in good order and returned upon completion of use or otherwise upon termination in good condition apart, where relevant, from reasonable wear and tear.
6
Lawful Directions
6.1
In the discharge of its duties, the Subcontractor will: (i)
comply with all resolutions, regulations and directions of Kinetic IT as may be given from time to time as to the nature and scope of the Services to be provided; and
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(ii)
subject to paragraph (a) and subject also to any other obligations arising out of this Agreement, comply with all reasonable and lawful directions of the Customer in matters relating to personal conduct, security and use of the Customer's facilities.
6.2
Nothing in clause 6.1 will affect the Subcontractor's right to exercise its own judgement and to utilise its skills as it considers most appropriate in order to achieve compliance with the said resolutions, regulations and directions or otherwise to comply with its obligations under this Agreement.
7
Interests of Kinetic IT
7.1
In all dealings with Kinetic IT, the Subcontractor undertakes to refrain during and subsequent to the termination of this Agreement from making or issuing any derogatory remark or statement regarding Kinetic IT, its personnel or its business.
8
Location of Services
8.1
The Services will, to the extent relevant, be provided at the location specified in Schedule 1.
8.2
Subject to clause 8.1, the Subcontractor's services will be provided at such place or places as Kinetic IT may from time to time authorise or direct and subject to such reasonable conditions as may be imposed by Kinetic IT.
9
Scheduling of Services
9.1
The Subcontractor will provide the Services during the times specified (if any) in 0.
9.2
In circumstances where the Services may interfere with the Customer's normal use of its premises or interfere with the discharge by Kinetic IT of its obligations under the Head Agreement, the Subcontractor will reschedule the Services to a time designated by Kinetic IT or the Customer (as the case may be) as being more convenient.
10 Security 10.1 The Subcontractor will ensure all information and materials of Kinetic IT and the Customer in the custody of the Subcontractor for purposes connected with this Agreement will be protected at all times from unauthorised access or use by a third party or misuse, damage or destruction by any person. 10.2 The Subcontractor will comply with all security regulations or procedures or directions as may be given by Kinetic IT from time to time regarding any aspect of security or access to premises of Kinetic IT or the Customer.
11 Subcontractor’s Status 11.1 The Subcontractor is an independent contractor without authority to bind Kinetic IT by contract or otherwise and neither the Subcontractor nor the Subcontractor's personnel are agents or employees of Kinetic IT by virtue of this Agreement.
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11.2 The Subcontractor acknowledges it has sole responsibility in relation to payment, if any, of superannuation, workers' compensation and taxes incidental to employment in respect of its own personnel. The Subcontractor further acknowledges that neither it nor its personnel have, pursuant to this Agreement, any entitlement from Kinetic IT in relation to any form of employment or related benefit.
12 Charges 12.1 Kinetic IT will pay the Charges at the rate and in the manner set out in 0. 12.2 Except to the extent otherwise provided in this Agreement, the Charges will be the total charges payable by Kinetic IT. Without limiting the foregoing, no additional charges will be made on account of new or existing or increased government levies or charges applicable to this Agreement. 12.3 Subject to clause 12.4, the Charges or other consideration for any supply by the Subcontractor to Kinetic IT under or in connection with this Agreement includes any GST payable on that supply, and the Subcontractor (and not Kinetic IT) is responsible for payment of that GST. 12.4 The Subcontractor must, within twenty (20) Business Days of request from Kinetic IT, issue a tax invoice (or an adjustment note) to Kinetic IT for any supply by the Subcontractor for which GST is payable under or in connection with this Agreement. 12.5 The Subcontractor will promptly create an adjustment note for (and apply to the Commissioner of Taxation for) a refund, and refund to Kinetic IT, any over payment by Kinetic IT for GST but the Subcontractor need not refund to Kinetic IT any amount for GST paid to the Commissioner of Taxation unless the Subcontractor has received a refund or credit for that amount.
13 Payment 13.1 Subject to clause 13.2, Kinetic IT will pay the Charges on the date or dates specified in 0. 13.2 Payment will not be due until Kinetic IT receives a correctly rendered invoice. An invoice is correctly rendered if: (i)
the specified Charge is correctly calculated and due for payment;
(ii)
the invoice is set out in a manner that enables Kinetic IT to ascertain the goods or services to which the invoice relates and the Charge payable in respect of those goods or services;
(iii)
the invoice is accompanied (where necessary or where reasonably requested by Kinetic IT) by verifying documentation; and
(iv)
the invoice is addressed as specified in 0.
14 Title in Materials 14.1 The ownership of all Intellectual Property associated with the Materials will vest in the Party or Parties so specified in Schedule 1. 14.2 The Subcontractor will execute all documents and do all acts and things required by Kinetic IT or a third party for the purpose of giving effect to clause 15.
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14.3 Kinetic IT acknowledges that, notwithstanding clause 15, the vesting in Kinetic IT of title in the Materials does not affect the ownership of Intellectual Property in any pre-existing material (including but not limited to software, documentation and data) which is incorporated into the Materials. In such circumstances, the Subcontractor will grant Kinetic IT a non-exclusive and non-transferable licence to use such pre-existing materials.
15 Intellectual Property 15.1 The Subcontractor warrants that the Materials do not infringe the Intellectual Property of any person. The Subcontractor will fully indemnify Kinetic IT against any loss, costs, expenses, demands or liability, whether direct or indirect, arising out of a claim by a third party against Kinetic IT alleging that the Materials infringe any such Intellectual Property. 15.2 The indemnity referred to in clause 15.1 will be granted whether or not legal proceedings are instituted and, if such proceedings are instituted, irrespective of the means, manner or nature of any settlement, compromise or determination. 15.3 Kinetic IT will notify the Subcontractor as soon as practicable of any infringement, suspected infringement or alleged infringement by the Materials of the Intellectual Property of any person. 15.4 Without prejudice to Kinetic IT's right to defend a claim alleging such infringement, the Subcontractor will if requested by Kinetic IT but at the Subcontractor's expense conduct the defence of a claim by a third party which alleges infringement by the Materials of Intellectual Property. The Subcontractor will observe Kinetic IT's directions relating in any way to that defence or to negotiations for settlement of the claim. 15.5 Kinetic IT will, if requested by the Subcontractor but at the Subcontractor's expense, provide the Subcontractor with reasonable assistance in conducting the defence of a claim pursuant to clause 15.4. The Subcontractor will reimburse Kinetic IT for all verified expenses incurred pursuant to this clause 15.5 within ten (10) Business Days of receipt of Kinetic IT's written demand. 15.6 Without limiting the generality of the foregoing clauses, if it is determined by any independent tribunal of fact or law or if it is agreed between the parties to the dispute that an infringement of Intellectual Property has occurred, the Subcontractor will at its sole expense: (i)
modify the Materials in order to avoid continuing infringement;
(ii)
procure for Kinetic IT the right to continue the use or possession of the infringing Materials; or
(iii)
if the solutions in either of the preceding paragraphs cannot be achieved, remove the Materials.
16 Confidentiality 16.1 Meaning of Confidential Information (i)
subject to paragraph b), Confidential Information is: a)
information that: 1.
is made available by or on behalf of a Party to the other Party; or
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2.
relates to the business, assets or affairs of a Party and is obtained by or on behalf of the other Party,
whether made available or obtained directly or indirectly, or before on or after the date of this Agreement; and b)
is by its nature confidential or the receiving Party knows, or ought to know, is confidential;
and includes:
(ii)
c)
information relating to the personnel, policies or business strategies of the Customer;
d)
information which is designated by the Customer as confidential; and
e)
information relating to the Head Agreement.
confidential Information does not include information that: a)
is in or enters the public domain through no fault of the receiving Party or any of its officers, employees or agents;
b)
is or was made available to the receiving Party by a person (other than the disclosing Party) who is not or was not then under an obligation of confidence to the disclosing Party in relation to that information; or
c)
is or was developed by the receiving Party independently of the disclosing Party and any of its officers, employees or agents.
16.2 Use and disclosure of Confidential Information A Party (the Recipient) which acquires Confidential Information of another Party (the Discloser) must not: (i)
use any of the Confidential Information except to the extent necessary to exercise its rights and perform its obligations under this Agreement; or
(ii)
disclose any of the Confidential Information except in accordance with clauses 16.3 or 15.4.
16.3 Disclosures to personnel and advisers (i)
the Recipient may disclose Confidential Information to an officer, employee, agent, contractor, or legal, financial or other professional adviser if: a)
the disclosure is necessary to enable the Recipient to perform its obligations or to exercise its rights under this Agreement; and
b)
prior to disclosure, the Recipient informs the person of the Recipient's obligations in relation to the Confidential Information under this Agreement and obtains an undertaking from the person to comply with those obligations.
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(ii)
the Recipient must ensure that any person to whom Confidential Information is disclosed under paragraph 16.3(i)a) keeps the Confidential Information confidential and does not use it for any purpose other than as permitted under paragraph 16.3 (i).
(iii)
Kinetic IT may at any time require the Subcontractor to arrange for its employees, agents, contractors or advisors engaged in relation to the performance of this Agreement to execute a suitable confidentiality deed. The Subcontractor must arrange for all such deeds to be executed within the timeframe reasonably proposed by the Kinetic IT.
16.4 Disclosures required by law (i)
(ii)
subject to paragraph 16.4 (ii), the Recipient may disclose Confidential Information that the Recipient is required to disclose: a)
by law or by order of any court or tribunal of competent jurisdiction; or
b)
by any government agency, stock exchange or other regulatory body.
if the Recipient is required to make a disclosure under paragraph 16.4 (i), the Recipient must: a)
to the extent possible, notify the Discloser immediately it anticipates that it may be required to disclose any of the Confidential Information;
b)
consult with and follow any reasonable directions from the Discloser to minimise disclosure; and
c)
if disclosure cannot be avoided: 1.
only disclose Confidential Information to the extent necessary to comply; and
2.
use reasonable efforts to ensure that any Confidential Information disclosed is kept confidential.
16.5 Confidentiality of this Agreement For the avoidance of doubt and without limiting the definition of Confidential Information in clause 16.1, information concerning the existence and terms of this Agreement and the Head Agreement are Confidential Information and must not be disclosed by a Party (each Recipients of such information) other than in accordance with clauses 16.3 or 16.4.
16.6 Destruction On termination or expiry of this Agreement, and subject to any terms of this Agreement to the contrary, a Party must, if requested in writing by the other Party: (i)
return to the other Party all documents, reports, notes, memoranda, computer media and other materials which record, contain or relate in any way to the Confidential Information of the other Party; and
(ii)
delete entirely and permanently all of the Confidential Information of the other Party from every computer disk or electronic storage facility of any type owned or used by the first mentioned Party.
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17
Insurance
17.1 The Subcontractor will, to the extent specified in Schedule 1, be insured in respect of potential liability, loss or damage arising at common law or under any statute in respect of claims for property damage, personal injury, public liability and professional indemnity relevant to the performance of the Subcontractor's obligations pursuant to this Agreement. 17.2 The Subcontractor will produce evidence, on demand, of the terms and currency of the insurances effected and maintained in accordance with this clause.
18 Liability and Indemnity 18.1 Subject to clause 18.2, the Subcontractor releases and indemnifies Kinetic IT, its servants and agents against all actions, claims and demands (including the cost of defending or settling any action, claim or demand) which may be instituted against Kinetic IT arising out of a breach of this Agreement by the Subcontractor or the negligence of the Subcontractor, its agents, employees or sub-Subcontractors or of any other person for whose acts or omissions the Subcontractor is vicariously liable. 18.2 The liability of the Subcontractor (including liability under an indemnity) in respect of an act or omission by the Subcontractor in the course of performing its obligations under this Agreement will be subject to the limitation on liability (if any) specified in Schedule 1.
19 Termination 19.1 Without prejudice to any other rights which Kinetic IT may have under this Agreement or at law, Kinetic IT may terminate this Agreement immediately by notice in writing if the Subcontractor is in breach of any term and such breach is not remedied within twenty (20) Business Days of written notice by Kinetic IT. 19.2 Kinetic IT may terminate this Agreement immediately upon notice in writing to the Subcontractor if: (i)
the Subcontractor becomes or threatens to become or is in jeopardy of becoming subject to any form of insolvency administration; or
(ii)
the Subcontractor undergoes a Change of Control.
19.3 If notice is given to the Subcontractor to terminate this Agreement pursuant to clauses 19 or 19.2, Kinetic IT may, in addition to terminating the Agreement: (i)
recover any of Kinetic IT's property and all related data, documentation and records retained by the Subcontractor pursuant to this Agreement;
(ii)
recover any sums paid to the Subcontractor on any account or for services which have not been fulfilled or performed together with interest on such sums calculated from the date those sums were paid until the date of refund;
(iii)
recover from the Subcontractor the amount of any loss or damage sustained as a result of the termination;
(iv)
be regarded as discharged from any further obligations under this Agreement; and
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(v)
pursue any additional or alternative remedies provided by law.
19.4 This Agreement will terminate in the event of termination for any reason of the Head Agreement and: (i)
if the termination of the Head Agreement is due to an act or omission of the Subcontractor, the provisions of clauses 19.1, 19.2 and 19.3 will apply;
(ii)
if the termination of the Head Agreement is due to any other cause, this Agreement will terminate without further liability for either Party and, without limiting the foregoing, the obligations of Kinetic IT to the Subcontractor will be limited to the payment of any amount due for work performed to the date of termination.
19.5 Upon termination of this Agreement for any reason, the Subcontractor will provide all reasonable assistance which Kinetic IT considers necessary to enable the transfer of Kinetic IT's property (including the Materials) and all related data, documentation and records to Kinetic IT or a third party nominated by Kinetic IT, at no additional charge.
20 GST and Claims 20.1 If a payment to satisfy a claim or a right to claim under or in connection with this Agreement (for example, for misleading or deceptive conduct or for misrepresentation or for a breach of any warranty or for an indemnity or for reimbursement of any expense) gives rise to a liability to pay GST, the payer must also pay, and indemnify the payee against, the amount of that GST. 20.2 If a Party has a claim under or in connection with this Agreement for a cost on which that Party must pay GST, the claim is for the cost plus all GST (except any GST for which that Party is entitled to an input tax credit). 20.3 If a Party has a claim under or in connection with this Agreement and the amount of the claim depends on actual or estimated revenue or lost revenue, revenue must be calculated without including any amount received or receivable as reimbursement for GST (whether that amount is separate or included as part of a larger amount).
21 Force Majeure 21.1 Neither Party will be liable for any delay or failure to perform its obligations pursuant to this Agreement if such delay is due to a Force Majeure Event. 21.2 If a delay or failure of a Party to perform its obligations is caused or anticipated due to a Force Majeure Event, the performance of that Party's obligations will be suspended. 21.3 If a delay or failure by a Party to perform its obligations due to a Force Majeure Event exceeds fortyfive (45) Business Days, either Party may immediately terminate the Agreement on providing notice in writing to the other Party. 21.4 If this Agreement is terminated pursuant to clause 21.3, the Subcontractor will refund moneys previously paid by Kinetic IT pursuant to this Agreement for goods or services not provided by the Subcontractor to Kinetic IT.
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22 Sub-Contracts 22.1 The Subcontractor will not sub-contract or otherwise arrange for another person to perform any part of this Agreement or to discharge any of its obligations under any part of this Agreement without the prior written consent of Kinetic IT. 22.2 In the event Kinetic IT consents to a sub-contract pursuant to clause 22.1, the Subcontractor will not be relieved of any of its liabilities or obligations under this Agreement and the Subcontractor will be liable to Kinetic IT for the acts, defaults and neglects of any sub-Subcontractor or any employee or agent of the sub-contractor as if they were the acts, defaults or neglects of the Subcontractor or the employees or agents of the Subcontractor. 22.3 The Subcontractor will be responsible for ensuring the suitability of all sub-contractors and for ensuring that the work performed by the sub-contractor meets the requirements of this Agreement. 22.4 The Subcontractor will ensure that each sub-contractor is aware of all the terms of this Agreement relevant to the sub-contractor's part in the performance of this Agreement.
23 Conflict of Interest 23.1 The Subcontractor warrants that to the best of its knowledge no conflict of interest exists or is likely to arise in the performance of its obligations under this Agreement. 23.2 The Subcontractor will not, during the course of this Agreement, engage in any activity likely to compromise the ability of the Subcontractor to perform its obligations under this Agreement fairly and independently. The Subcontractor will immediately disclose to Kinetic IT any activity which constitutes or may constitute a conflict of interest.
24 Entire Agreement 24.1 This document contains the entire agreement between the Parties about its subject matter. Any previous understanding, agreement, representation or warranty relating to that subject matter is replaced by this Agreement and has no further effect.
25 Precedence 25.1 The documents comprising this Agreement will be read in the following order of precedence: (i)
the specified provisions of the Head Agreement which have been incorporated into this Agreement;
(ii)
the remaining clauses of this Agreement; and
(iii)
the Schedules.
25.2 Where any conflict occurs between the provisions contained in two or more of the documents forming this Agreement, the document lower in the order of precedence will where possible be read down to resolve such conflict. If the conflict remains incapable of resolution by reading down, the conflicting provisions will be severed from the document lower in the order of precedence without otherwise diminishing the enforceability of the remaining provisions of that document.
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26 Assignment and Novation 26.1 The benefit of this Agreement will not be assigned by the Subcontractor without Kinetic IT's written consent. 26.2 Kinetic IT may consent to the assignment or novation of this Agreement subject to such conditions as it chooses to impose.
27 Variation of rights 27.1 The exercise of a right partially or on one occasion does not prevent any further exercise of that right in accordance with the terms of this document. Neither a forbearance to exercise a right nor a delay in the exercise of a right operates as an election between rights or a variation of the terms of this document.
28 Variation 28.1 The provisions of this Agreement will not be varied, except by agreement in writing signed by the Parties. 28.2 If either Party wishes to vary the Agreement, the proposing Party will submit a copy of the proposed variations to the other Party (the receiving Party), specifying a reasonable period in which the receiving Party is to provide written notice of acceptance or rejections of the proposal. 28.3 If the receiving Party accepts the variations, the Agreement will be deemed to be so amended from the date of acceptance. 28.4 If the receiving Party rejects the proposed variations, each Party will perform the Agreement in accordance with the unvaried terms.
29 Disputes 29.1 Any dispute arising in connection with this Agreement which cannot be settled by negotiation between the Parties or their representatives will be submitted to arbitration in accordance with the Rules for the Conduct of Commercial Arbitrations for the time being of the Institute of Arbitrators Australia. During such arbitration, both Parties may be legally represented. 29.2 Nothing in this clause will prevent a Party from seeking urgent equitable relief before an appropriate court.
30 Co-operation 30.1 The Subcontractor will sign all documents and do all things necessary or desirable to give effect to this Agreement and will procure its officers, employees and agents to declare, make or sign all documents and do all things necessary or desirable to give full effect to this Agreement. 30.2 In addition to and notwithstanding any other obligation under this Agreement, the Subcontractor will:
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(i)
to the extent practical, co-operate with Kinetic IT in the pursuit of its business objectives relevant to this Agreement;
(ii)
pursue best practice in the delivery of services pursuant to this Agreement;
(iii)
as soon as practicable, consult with Kinetic IT on any matter arising which may materially affect the performance by the Subcontractor of its obligations under this Agreement.
30.3 Except to the extent stated to the contrary in this Agreement, any consent, approval, condition or thing required to be done pursuant to this Agreement will not be capriciously or unreasonably reached, withheld, given or carried out by either Party.
31 Kinetic IT’s rights 31.1 Any express statement of a right of Kinetic IT under this Agreement is without prejudice to any other right of Kinetic IT expressly stated in this Agreement or arising at law.
32 Survival of Agreement 32.1 Subject to any provision to the contrary, this Agreement will enure to the benefit of and be binding upon the Parties and their successors, trustees, permitted assigns or receivers but will not enure to the benefit of any other persons. 32.2 The covenants, conditions and provisions of this Agreement which are capable of having effect after the expiration of the Agreement will remain in full force and effect following the expiration of the Agreement.
33 Severability 33.1 If any provision of this Agreement is held invalid, unenforceable or illegal for any reason, this Agreement will remain otherwise in full force apart from such provision which will be deemed deleted.
34 Operation of Indemnities 34.1 Each indemnity in this Agreement survives the expiry or termination of this Agreement. 34.2 A Party may recover a payment under an indemnity in this Agreement before it makes the payment in respect of which the indemnity is given.
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35 Consents 35.1 Where this Agreement contemplates that Kinetic IT may agree or consent to something (however it is described), Kinetic IT may: (i)
agree or consent, or not agree or consent, in its absolute discretion; and
(ii)
agree or consent subject to conditions;
unless this document expressly contemplates otherwise.
36 Governing Law 36.1 This document is governed by the law in force in the State of Western Australian. 36.2 Each Party submits to the non-exclusive jurisdiction of the courts exercising jurisdiction in the State of Western Australia, and any court that may hear appeals from any of those courts, for any proceedings in connection with this Agreement, and waives any right it might have to claim that those courts are an inconvenient forum.
37 Notices 37.1 A notice, consent or other communication under this Agreement is only effective if it is: (i)
in writing, signed by or on behalf of the person giving it;
(ii)
addressed to the person to whom it is to be given; and
(iii)
either: a)
delivered or sent by pre-paid mail (by airmail, if the addressee is overseas) to that person's address; or
b)
sent by fax to that person's fax number and the machine from which it is sent produces a report that states that it was sent in full; or
c)
sent in electronic form (such as email).
37.2 A notice, consent or other communication that complies with this clause is regarded as given and received: (i)
(ii)
if it is delivered or sent by fax: a)
by 5 pm (local time in the place of receipt) on a Business Day - on that day; or
b)
after 5 pm (local time in the place of receipt) on a Business Day, or on a day that is not a Business Day - on the next Business Day;
if it is sent by mail: a)
within Australia - three (3) Business Days after posting; or
b)
to or from a place outside Australia - five (5) Business Days after posting; and
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(iii)
if it is sent in electronic form - when the email message comes to the attention of the addressee.
37.3 A person's postal and email address and fax number are those set out below, or as the person notifies the sender: Kinetic IT Postal Address: Email Address: Fax number: Attention:
Level 8 30 The Esplanade, Perth Western Australia 6000 Russell.Decent@kineticit.com.au (08) 9238 0000 Mr Russell Decent
Yawuru IT Services Pty Ltd Postal Address: Unit 4/2 Hamersley Street, Broome Western Australia 6725 Email Address: dale@yawuruit.com.au Fax number: N/A Attention: Mr Dale Robinson
38 General 38.1 This Agreement may be executed in counterparts by the respective Parties, each of which when so executed will be deemed to be an original and all of which taken together will constitute one and the same agreement, provided that this Agreement will be of no force and effect until the counterparts are exchanged. 38.2 Each Party must pay its own expenses incurred in negotiating, executing, stamping and registering this Agreement. 38.3 Each Party must do anything (including execute any document), and must ensure that its employees and agents do anything (including execute any document), that the other Party may reasonably require to give full effect to this Agreement.
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Schedule 1 Contract details 1
Head Agreement
The Contract for Information Support Services (Contract No: C3/3000002727) between Water Corporation ABN 28 003 434 917 and Kinetic IT Pty Ltd ABN 97 072 941 943 dated 21 January 2013.
2
Term
The rights and obligations under this Agreement begin on the execution date and end on the earlier of
3
i)
a period of 6 calendar months; or
ii)
the date of termination under clause 19
Back-to-Back Provisions
The following clauses of the Head Agreement will have full back-to-back application to this Agreement (subject to clause 4 of this Agreement): These clauses from the Agreement are detailed in Appendix 1
4
i)
clause 8 (Access to Sites and Systems);
ii)
clause 9 (System);
iii)
clause 11 (Service Provider Facilities);
iv)
clause 15.8 (Location of Services);
v)
clause 16 (Service Provider Personnel);
Special conditions
3.1
The Subcontractor must, on or before the date of this Agreement, enter into the Subcontractor Agreement set out in Error! Reference source not found. with Water Corporation ABN 28 003 434 917.
3.2
The Subcontractor irrevocably consents to Kinetic IT disclosing this Agreement to: (i)
the Customer; and
(ii)
such other third parties as contemplated by and in accordance with the requirements of clause 17.2(d) of the Head Agreement.
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3.3
Clause 16Error! Reference source not found. of this Agreement is deleted. (i)
3.4
Refer to Schedule 4 Attachment 23-A Long Form Subcontractor Agreement, Clause 1 Confidential Information and Clause 5 Confidentiality and privacy for the confidentiality regime.
Kinetic IT may assign to any person or cause a novation of its rights and obligations under this Agreement to any other person and the Subcontractor irrevocably consents to, and will do everything necessary to give effect to, such assignment or novation.
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5
Location at which services are to be provided
Site Name
Site Description
Region
Street Address
Postal Address
City/Suburb/Town
Postal Code
State
BROOME
District Office/Depot
North West Region
Blackman Street
BROOME
Broome
6725
WA
DERBY
District Office/Depot
North West Region
Wodehouse Street
DERBY
Derby
6728
WA
KUNUNURRA
District Office/Depot
North West Region
Bandicoot Drive
KUNUNURRA
Kununurra
6743
WA
WYNDHAM
District Office/Depot
North West Region
Coverley Street
WYNDHAM
Wyndham
6740
WA
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21
6
Not used
7
Intellectual Property – ownership
6.1.
Clauses 14 and 15 of this Agreement are deleted.
6.2.
Refer to Schedule 4 Attachment 23-A Long Form Subcontractor Agreement
8
Liability cap
7.1.
The maximum cumulative liability of the Service Provider under this Agreement in respect of all Capped Damages will be the greater of: (i)
A$12 million;
(ii)
Two (2) times the maximum amount paid or payable to the Service Provider under this Agreement in any Year up to a maximum of A$30 million; and
(iii)
such other cap in respect of a Project as may be set out in a Project Charter.
7.2.
The maximum cumulative liability of the Water Corporation under this Agreement in respect of all Capped Damages will be the maximum amount paid or payable by the Water Corporation to the Service Provider under this Agreement in any Year
9
Insurance Refer to Schedule 4 Attachment 23-A Long Form Subcontractor Agreement Clause 3 Warranties
10
Restraint Period Not applicable.
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Schedule 2 Services 1
2
3
Desktop Support Services – Incident Management i)
End-User Hardware trouble-shooting and break-fix,
ii)
Video Conferencing End-Point support,
iii)
Corporate Smart Device trouble-shooting and break-fix
Desktop Support Services – Request Fulfilment i)
Desktop Equipment Deployment
ii)
Desktop Equipment Retrieval
iii)
Network Port Patching
iv)
Installation of Meeting Room Computing Equipment
Asset Management Services i)
Retain stock levels of Water Corporation supplied desktop equipment assets and components at appropriately secured premises as agreed by Yawuru IT Services Pty Ltd and Water Corporation,
ii)
Provide regular reports on stock levels at each location,
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Schedule 3 Charges 1
Yawuru IT Services Pty Ltd standard schedule of fees for time and materials: i)
$150.00 per hour inclusive of GST (Desktop Support)
ii)
Travel on road costs inclusive of GST; a)
Fuel Cost = 80 L * 1.80 (diesel) = $144 (Fuel Watch Broome)
b)
Mileage per tank = 1132.8 km
c)
Broome to Derby (return)
d)
e)
1.
Distance return in kms = 445.8 km
2.
Travel time 5 hrs 44 minutes * $150 p/h
Broome to Kununurra (return) 1.
Distance return in kms = 2088 kms
2.
Travel time 22 hrs * $150 p/h
Broome to Wyndham (return) 1
Distance return in kms = 2118 kms
2
Travel time 23 hrs * $150 p/h
iii)
Materials (desktop assets and components) to be supplied by Water Corporation
iv)
Kinetic IT will reimburse the Subcontractor reasonable out-of-pocket expenses incurred in connection with performing the services under the terms of this agreement, provided that the Subcontractor provides Kinetic IT with adequate proof of the expense. Kinetic IT expects out-of-pocket expenses to exclude overhead costs, administrative expenses or other mark-ups.
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Attachment 23-A Long Form Subcontractor Agreement
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Appendix 1 Head Agreement Provisions
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EXECUTED as an agreement.
SIGNED for KINETIC IT PTY LTD by its duly authorised officer, in the presence of: Signature of officer
Signature of witness
Name
Name
SIGNED for YAWURU IT SERVICES PTY LTD by its duly authorised officer, in the presence of: Signature of officer
Signature of witness
Name
Name
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