1. THIS AGREEMENT IS MADE BETWEEN: 1.1.Encom Corporation N Northsight Blvd Suite 111 (hereinafter referred to as "Encom") AND: (hereinafter referred to as "the Customer").
2. RECITALS: 2.1.Encom is a respected, experienced, and quality endorsed information technology consulting, services and solutions provider.
2.2.The Customer wishes to enter into a formal contractual arrangement with Encom for the provision of information, communications and technology services.
2.3.The parties have agreed that Encom will provide the Services subject to the terms and conditions of this Agreement.
3. SERVICE: 3.1.The Services Encom is able and prepared to provide to the Customer are described in either the Support Agreement, Proposal or the relevant SoW. Where the Customer requires Encom to perform any Services, the required Services will be specified in the SOW. The agreed SOW will form part of this Agreement
3.2. Encom agrees to provide the Services ("Services") specified in the SOW to the Customer upon the terms and conditions of this Agreement and in accordance with Part C of this Agreement
3.3. Encom will comply with Customer policies for IT systems as disclosed in writing to Encom during the term of this Agreement. Should any deviation from stated Customer policies be required to resolve an urgent issue, this will only be undertaken with prior, written approval from the Primary Customer Contact.
4. EXCLUSIONS: 4.1.The Services do not include:
4.1.1. the repair of computer hardware or related components other than coordination with the relevant vendor/supplier.
4.1.2. the repair of any third party failure other than coordination with the relevant vendor/supplier.
4.2. Encom reserves the right to exclude from the scope of its Services any software for which the Customer does not hold valid licenses.
5. BUSINESS HOURS: 5.1.Standard Business Hours, from 8:30am - 6pm inclusive; excluding state gazetted public holidays.
5.2.After Hours Technical Service Times, from 6pm - 8:30am; includes gazetted state public holidays.
5.3.Service Surcharge Hours include all times not covered by Standard Business Hours. Unless the "On Call" option is purchased or Pre-Scheduled After Hours work is agreed, the following will apply:
5.3.1. minimum 3 hour duration charge;
5.3.2. initial Flag Fall fee of $1000.00 per incident.
6. STANDARD SERVICE FEE: 6.1.From the Date of Agreement, the Customer agrees to pay in arrears:
6.1.1. the Service Fees applicable to the relevant Services specified in the Support Contract or relevant quote; and
6.1.2. the Service Surcharge fees where applicable.
6.2. Any Standard Services performed by Encom will be incurred based on actual time spent in units of 0.25 hours.
6.3. Fees for the Services performed will be invoiced at the end of each calendar month specifying the payment terms in accordance with the Support Agreement or relevant quote.
7. OPTIONAL SERVICES FEE: 7.1.From the Date of Agreement, the Customer agrees to pay in arrears the Service Fees referring to Optional Services described in the Support Agreement or relevant quote which are provided by Encom.
7.2.Overseas vendor support fees will be converted to United Statesn dollars at the prevailing exchange rate by the Commonwealth Bank. An additional fee of 10% of the converted invoice amount will be charged as a Management Service Fee.
8. INCURRED EXPENSES: 8.1.All reasonable expenses incurred in the discharge of services by Encom to the Customer will be on-charged to the Customer at cost plus 10%.
8.2.The Customer agrees to provide all travel and accommodation for travel where overseas or regional area travel is required.
9. REVIEW OF FEES: 9.1. All fees and charges specified may be subject to change after the first year of the Agreement upon 60 days prior written notice from Encom. Encom may only increase charges once each year thereafter, with 60 days prior written notice.
10. Encom TO PAY ALL TAXES, CHARGES AND LEVIES: 10.1. Encom will be solely responsible for the payment of all taxes, levies and charges imposed on Encom personnel, or imposed on any person(s) engaged by Encom, including payments: 10.1.1. levied upon or calculated with reference to the fees payable or paid to Encom personnel under this Agreement;
10.1.2. imposed in relation to the Services or this Agreement including corporate tax, personal income tax, fringe benefits tax, payroll tax, withholding tax, sales tax, excise and import duties, goods and services tax and consumption tax; and
10.1.3. required by law, contract, industrial award or industrial agreement to be made to or in respect of any person(s) engaged by Encom personnel in the performance of the Services including wages, salaries, statutory superannuation contributions and worker's compensation payments and contributions ("the Taxes").
10.2. Encom indemnifies and will keep indemnified the Customer from and against all liability for the above payments and all liabilities arising in respect of non-payment or late payment o these payments.
10.3. Encom will also be responsible for the filing of any return or other document required by any relevant government or regulatory authority in relation to any of the above payments.
11. SUPPLY OF GOODS: 11.1. If requested by the Customer to supply any hardware, software or materials ("Goods"), Encom will use its best efforts to secure the supply of the Goods to the Customer at the best available purchase or lease/rental price.
11.2. If Encom is able to supply the requested Goods, it will provide a written quotation to the Customer setting out the price and the terms and conditions of sale. If the Customer accepts the quotation, the Customer agrees to pay the specified quotation price in accordance with the terms of payment as specified in the quotation upon delivery of the Goods as per the quotation.
12. ACCESS TO CUSTOMER PREMISES AND FACILITIES: 12.1. The Customer agrees to provide Encom with access to the Customer's premises and facilities (including but not limited to equipment, software, documentation, and licenses) to enable Encom to fulfil its obligations under the Agreement.
12.2. Where access is temporarily denied or suspended by the Customer, Encom will be entitled to an extension of time to complete any obligations which are directly and adversely affected by the access restriction imposed.
13. CUSTOMER RESPONSIBILITY: 13.1. The Customer warrants that it is the owner of the information technology systems subject to this Agreement, or if not the owner, that the Customer has the authority to enter into this Agreement and permit Encom to perform Services on those systems.
13.2. The Customer will provide a contact person to act as the liaison for all matters arising in the performance of this Agreement.
13.3. The Customer will provide Encom with; 13.3.1. free and full access (including interruption of usage, if necessary) at agreed times to its premises and computer systems; and
13.3.2. a suitable working area for the performance of the Service during the term of this Agreement.
13.4. The Customer further acknowledges and agrees that Encom will not be held liable for any lost profits, consequential damages or for any claim or demand made against the Customer by any other third party as a result of Encom having access to its premises or computer systems except to the extent caused by Encom's negligence.
14. Encom'S OBLIGATIONS: 14.1. In performing the Services and without limiting any other provision of this Agreement, Encom will at all times during its engagement:
14.1.1. ensure that all Personnel will perform any Services in a professional manner and with due care, competence and skill;
14.1.2. exercise the utmost good faith in all dealings with the Customer; 14.1.3. provide the Customer with a just and faithful account of all undertakings conducted on the Customer's behalf;
14.1.4. act in a timely, skilful, diligent, workmanlike, careful, safe and proper manner to promote the interests and welfare of the Customer;
14.1.5. act in accordance with any applicable laws, regulations, by-laws and orders;
14.1.6. act in accordance with the standards and practices normally exercised by a professional in the performance of the same or similar services in the same or similar
14.1.7. use equipment and materials of merchantable quality and fit for intended
14.1.8. use only personnel possessing the requisite levels of skill, experience, and competence to perform the Services; and
14.1.9. comply with applicable Encom and Customer environmental, occupational health and safety, site security and quality policies and procedures as amended from time to time.
15. NON-SOLICITATION: 15.1. The Customer must not, without prior written approval from Encom, approach Encom Personnel during the Term of this Agreement and for a period of six (6) months thereafter in order to:
15.1.1. make an offer of employment with the Customer or any related entity; or
15.1.2. Canvass, solicit, employ, enter into contract with, engage or permit employment by a third party, either directly or indirectly.
15.2. Without limiting any other rights or remedies available to Encom in the event that the Customer or related third party employs or otherwise engages the services of any Encom Personnel, the Customer agrees it will pay to Encom a fee equivalent to 17.5% of the annual salary package of each of the Encom Personnel thus recruited, upon receipt of written notification of such breach.
15.3. If the Customer employs any Encom Personnel, either at the request of those Personnel or with Encom's written agreement, the Customer agrees it will pay to Encom a fee of $15,000 or 15% of their wage (whichever is the greater amount) as a finder's fee and to cover Encom's costs to find replacement Personnel.
15.4. Encom agrees not to approach Customer Personnel during the Term of this Agreement and for a period of six (6) months thereafter, without prior written approval from the Primary Customer Contact, in order to:
15.4.1. make an offer of employment with Encom or any related entity; or
15.4.2. Canvass, solicit, employ, enter into contract with, engage or permit employment by a third party, either directly or indirectly.
15.5. The parties agree that each separate provision of this clause is necessary and reasonable to protect both parties legitimate business interests.
16. INSURANCE: 16.1. Encom will ensure that the following insurances are procured and maintained by itself and (where industry; appropriate) by Encom personnel for the Term of this Agreement:
16.1.1. Workers' Compensation insurance (and use; Occupational Disease insurance where required by law), which complies with the relevant State and Federal laws in force at the time of this Agreement;
16.1.2. General and Products Liability insurance with a sum insured of not less than $5,000,000 for each occurrence.
16.1.3. Professional Indemnity insurance of not less than $5,000,000 in respect of any one incident;
16.1.4. Any other Insurance, which is required by Law.
16.2. The Customer is responsible, at its own expense, for procuring and maintaining suitable insurance coverage for all Customer equipment accessed by Encom personnel, or undertake to "self insure" such equipment. This insurance must include such provisions or undertakings as may be required for Customer equipment to be moved by Encom personnel, including equipment taken off site for any reason.
16.3. Encom will, if requested by the Customer, provide copies of policies or certificates of currency of insurance to demonstrate that the insurance required under clause
16.1 remains current and has not been changed.
17. CONFIDENTIAL INFORMATION: 17.1. The Customer may provide Encom with certain confidential, non-public or proprietary information concerning its operations. Such information includes, without limitation, all commercial and technical information supplied to or received by Encom or acquired in the course of performing the Services, whether acquired before or after the date of this Agreement, together with all analyses, compilations, data, studies, reports or other documents prepared by Encom, containing or otherwise reflecting or generated from such information ("Information").
17.2. Encom has permission to use the Information for the purpose of performing the Services. In consideration of this Encom agrees that:
17.2.1. It will treat the Information as private and confidential and will not use the Information, for any purpose other than in the course of providing the Services and meeting its obligations under this Agreement.
17.2.2. it will not disclose the Information to any person other than those whose duties and functions require a knowledge of or access to the Information for the purpose of this Agreement either during the Term of this Agreement of for a period of five (5) years after the termination of the Agreement without the prior written consent of the Customer, except to the extent required by law or court order.
17.2.3. it will return immediately to the Customer all confidential information in the possession or control of Encom or any person(s) engaged by Encom personnel on expiry of the Term, on termination of this Agreement, or at the request of the Customer.
17.2.4. it will, if requested by the Customer, obtain a deed of confidentiality and restraint from all employees of Encom and any person(s) engaged by Encom to provide the Services, in a form acceptable to the Customer, and of the same or similar terms as those in this Agreement.
18. INTELLECTUAL PROPERTY: 18.1. Encom acknowledges that all property and intellectual property rights (including copyright) in all material created by Encom in performing the Services under this Agreement belong to the Customer from its creation.
18.2. Clause 18.1 does not affect the rights of either party with respect to material provided for the purposes of the Services which was created outside or separately to this Agreement. A party providing such material grants a licence to the other party to use and copy such material for the purposes of this performing Agreement only.
18.3. Clause 18.1 does not restrict Encom's right to use its general expertise and knowledge accumulated in providing the Services. Specifically, Encom may use such practices and procedures as it may develop or acquire in providing the Services, but may not make any reproduction or substantial reproduction of any of the intellectual property assigned by clause
18.1 without the Customer's written consent.
19. PUBLICITY: 19.1. Neither party will make any public statements or releases to the media concerning the Services or the Agreement without the prior written approval of the other party (which approval shall not be withheld unreasonably).
20. ENTIRE AGREEMENT: 20.1. This Agreement and any Schedules, attachments and appendixes hereto constitute the entire Agreement between the parties superseding all prior agreements, arrangements, understandings or representations (if any) between the parties in respect of matters dealt with by this Agreement.
21. AMENDMENTS TO AGREEMENT: 21.1. No amendment or variation to any provision of this Agreement will have any force or effect unless made expressly in writing and signed by both parties.
22. NO WAIVERS: 22.1. No waiver of any provision of this Agreement by a party will be effective unless in writing and signed by both parties, and then such waiver will only be in effect for the specific instance for which it is given, and will not be a waiver of any other provision.
22.2. No delay or default by a party in exercising any rights under this Agreement will operate as a waiver of any other right hereunder.
23. NO ASSIGNMENT: 23.1. Neither party may assign or otherwise transfer any of its rights or obligations under this Agreement without the express prior written consent of each party to the Agreement.
24. NOTICES: 24.1. All notices, invoices and other documents required or permitted to be given to a party under this Agreement will be provided in writing and may be addressed to the respective party's postal address as outlined below or to any other such address as may be notified in writing by the Customer: Encom Corporation PO Box 1176 West Leederville WA 6901
25. CONFLICT OF INTEREST: 25.1. Encom warrants that it is unaware of any actual or potential conflict of interest which could reasonably be expected to prevent it from properly discharging its obligations in providing the Services under this Agreement.
25.2. Encom agrees to immediately advise the Customer should an actual or potential conflict of interest arise during the Term of the Agreement.
26. FORCE MAJEURE: 26.1. Delays in or failure of performance by a party (other than the payment of money) will not constitute a breach of this Agreement by that party if and to the extent that any delay or failure is caused by a force majeure. For the purposes of this clause "force majeure" includes any act of God, act of war, fire, flood, explosion, storm, earthquake and any other circumstance beyond the reasonable direct or indirect control of the party claiming the benefit of this clause.
26.2. A party affected by force majeure must within seven (7) days of being effected give details of the force majeure and the manner in which the performance of its obligations under this Agreement is affected and must immediately take the appropriate action to enable it to perform the obligations so affected.
26.3. In the event that any act of force majeure continues for a period of more than fourteen (14) days, the other party may terminate the Agreement by giving the party affected by the force majeure seven (7) days notice in writing.
27. DISPUTE RESOLUTION: 27.1. Subject to clause
27.2, neither party will resort to legal proceedings, or terminate this Agreement, until the following provisions for dispute resolution have been duly exercised in good faith. 27.2. Nothing in this clause will prevent a party from seeking urgent interlocutory relief.
27.3. If a party considers that a dispute has arisen under this Agreement (including a breach or an alleged breach of any of the provisions of this Agreement), that party will promptly provide formal notification in writing to the other party, detailing in full the matters in dispute. Management representatives from each of the parties (or their nominees) will then endeavour good faith to negotiate a resolution.
27.4. Should the management representatives (or their nominees) fail to negotiate a mutually acceptable resolution in accordance with sub-clause 27.3 within 5 (five) working days (or such other timeframe as may be jointly agreed between the parties), the parties must proceed to mediation. The mediator will be a person agreed by the parties or, in the absence of agreement, a person nominated by the President for the time being of the Western United Statesn Law Society.
27.5. If mediation fails to resolve the dispute then either party may commence or initiate legal proceedings against the other.
27.6. Unless prevented by the nature of the dispute, the parties will continue to perform their obligations under this Agreement while attempts are made to resolve the dispute.
28. TERM: 28.1. This Agreement takes effect on the date the last party signs the Agreement and remains in force for a period of one year unless terminated earlier in accordance with this clause or clause 29. Thereafter, it will be automatically renewed for quarterly periods unless terminated by either party by written notice at least one month before the first day of the renewal month, or as otherwise provided for in this Agreement. Unless the parties otherwise agree, the Agreement will be on the same terms during the renewed period except for any changes made to fees and charges by Encom as provided above.
28.2. Following receipt of notification to terminate this agreement Encom will work co-operatively to transition the services of the Customer's IT environment and undertakes to return all Customer assets in Encom's possession to the customer. The work will be charged at the Specialist Support Service fee and expenses reimbursed as per clause 7.
28.3. In the event that the Customer terminates the contract before the Renewal Date all monthly fees due for the Proactive Management Service between the termination dated and the Renewal Date will be payable by the Customer to Encom.
29. DEFAULT: 29.1. If either party breaches any of the terms of this Agreement, the other party may terminate this Agreement after thirty days notice if:
29.1.1. it has provided the other party with a written notice setting out the details of the default and a reasonable opportunity for the other party to remedy the default; and
29.1.2. the other party has failed to remedy the default in accordance with the written notice.
29.2. After sixty days notice and opportunity to cure, and in in addition to any other legal remedies it may have, Encom may repossess any unpaid goods supplied by Encom.
30. GOVERNING LAW: 30.1. This Agreement shall be construed and take effect in accordance with the laws of the United States and each party hereby submits to the exclusive jurisdiction of the courts of that State.
31. INTERPRETATION: 31.1. In this Agreement, unless the contrary intention is stated:
31.1.1. clause numbers and headings are provided for convenient reference only and have no effect in either limiting or extending the language of the provisions to which they refer;
31.1.2. use of, or reference to the singular includes the plural and vice versa;
31.1.3. a reference to a gender does not exclude other genders;
31.1.4. the word "written" or "writing" as it appears in this Agreement includes any commercially acceptable means of representing or reproducing words in human readable form, and specifically includes the use of electronic storage and transmission technologies such as e-mail and facsimile;
31.1.5. the word "includes" or "including" is not a word of limitation;
31.1.6. where a word or phrase is assigned a particular meaning, other parts of speech and grammatical forms of that word or phrase will be deemed to have corresponding meanings;
31.1.7. A reference to a person includes a reference to the Person's executors, administrators, successors, and permitted assigns;
31.1.8. A reference to a statute, regulation, ordinance, code, provision or other law includes: 184.108.40.206. that statute, regulation, ordinance, code, provision or other law as amended or re-enacted from time to time (including consolidations); 220.127.116.11. a statute, regulation, ordinance, code, provision or other law enacted in its replacement; and 18.104.22.168. Such regulations and other instruments under it;
31.1.9. A reference to this Agreement or any part or instrument includes any part Schedule, attachment, appendix, amendment, or replacement of the aforementioned irrespective of any change of party or any change in the identity of a party;
31.1.10. All the provisions in any part, Schedule, attachment or appendix to these Terms and Conditions are incorporated in and form part of this Agreement and bind the parties;
31.1.11. A reference to a month is to a calendar month and a reference to a year is to a calendar year unless stipulated as a financial year;
31.1.12. If a period of time is specified and dates from a given day or the day of an act or event, it is to be calculated inclusive of that day;
31.1.13. If the date stipulated for the doing of an act is not a Business Day, the act must be done on the next Business Day; and
31.1.14. All monetary references are references to United Statesn currency