Next Phaze Pty Ltd (48 604 672 719)

1  DEFINITIONS

“Adjustment Event”, “Adjustment Note”, “Tax Credit”, “Credit Note”, “GST”, “GST Law”, “Supply” and “Tax Invoice” have the meanings given to them in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) as amended from time to time.

“Agreement” means
the agreement constituted by this document and including the any terms set out in a the Proposal provided.

“Charges” means
the charges payable by the Client to NextPhaze for the Goods and/or Services provided and/or as set out in a Proposal provided.

“Client” means
the party names in the relevant Quotation or Tax Invoice as being the party for whom the Quotation or Tax Invoice was prepared for.

“Client’s Information” means
any documents or other materials and any data provided by the Client to NextPhaze necessary for or relating to the provision of the Goods and/or Services.

“Client’s Works” means
all works produced or provided by the Client to NextPhaze during the term of this Agreement capable of attracting Intellectual Property Rights.

“NextPhaze” means
Next Phaze Pty Ltd  ACN 48 604 672 719 the provider of products and services as specified in the Proposal, Quotation or Tax Invoice.

“NextPhaze Information” means
any Documents or other materials, and any data provided by NextPhaze to the Client which relates to NextPhaze or relates to or is provided as part of the Services.

“NextPhaze Works” means
all works produced or provided by NextPhaze to the Client during the Term capable of attracting Intellectual Property Rights.

“Intellectual Property Rights” means:

  1. all copyrights and all applications, registrations and renewals in connection with those copyrights in any jurisdiction (whether in Australia or not);

      (b)        all registrable rights of any nature whether registrable under State legislation or Commonwealth legislation;
(c)        all trade mark rights whether the relevant marks are registered or not;
(d)        all inventions (whether patentable or unpatentable and whether or not reduced to practice), all improvements thereto, and all patents, patent applications, and patent disclosures together with all re-issuances, continuations, continuations in part, revisions, divisions, extensions and re-examinations thereof and all rights therein provided by multinational treaties or conventions, and all improvements to the inventions disclosed in each such patent, patent application or patent disclosure and all associated rights; and
(e)        all other proprietary rights of nature and kind similar to the rights identified or described in any of the foregoing paragraphs of this definition.

“Invoice” means
an invoice provided by NextPhaze to the Client pursuant to this Agreement.

“Non-Original Software” means
any computer software, other than Original Software, procured by NextPhaze for use in the provision of Services.

“Original Software” means
computer software which is created by NextPhaze for (or which was previously created by NextPhaze and a copy of which is supplied to) the Client during the provision of Services.

“Party” means
a party to this Agreement and shall include an individual, firm, body or corporation.

“Primary Payment” means
any payment by the Client to NextPhaze under this Agreement and includes any payment of the Charges or other amount (including any payment of damages or pursuant to a guarantee or indemnity) payable by the Client to NextPhaze.

“Proposal” means
the written proposal (if any) provided by NextPhaze which attaches to and forms part of this Agreement, in respect of the provision of certain Goods and/or Services to the Client.

Quotation” means
a written quotation of NextPhaze’s proposed charges for certain Goods and Services, marked as a “Quotation”, “Quote” or “eQuote” by NextPhaze, whether or not as part of a Proposal.

“Services” or “Goods” means
all software, hardware, Original Software, Non-Original Software, and the Services (and any other Goods) set out in the Proposal or Quotation (including without limitation any necessary installation, support, management, consulting, reports, design plans and other works).

Term” means
subject to clause 4, the Proposed Term as set out in the Proposal, or if none, the period between when this Agreement commences and when it is terminated in accordance with its terms.

“Monthly in Advance” means
one month after the current date.

Support” means
NextPhaze support

Wholesalers” means
any party or parties who supply to NextPhaze  goods or services which form part or all of the Goods or Services supplied, resold or resupplied by NextPhaze pursuant to this Agreement.

2    PROVISION OF GOODS AND SERVICES

      2.1    The parties acknowledge that unless expressly agreed otherwise in writing, these terms and conditions will apply in respect of all provision by NextPhaze of Goods or Services to the Client at any time after the commencement of this Agreement.  These are the “Standard Terms and Conditions of Service and Supply” that are referred to in Proposals, Quotations, Tax Invoices and any statements of account from NextPhaze, and which are thus incorporated by reference into and which constitute, together with relevant Quotations and Proposals, in respect of each Quotation and Proposal, the agreement for supply of the Goods or Services referred to in each Quotation and Proposal.

      2.2   NextPhaze agrees to provide the Goods and Services in consideration for payment to NextPhaze of the Charges.

      2.3    In the event that the Services include the provision of Non-Original Software, NextPhaze will acquire the Non-Original Software together with any applicable licenses to use the Non-Original Software as agent for the Client and will make such acquisition in the name of the Client (and the Client now appoints and authorises NextPhaze as the Client’s agent for that purpose).

      2.4   NextPhaze will be entitled to invoice the Client pursuant to Clause 7 for, and the Client shall be required to pay to NextPhaze, the amounts specified in the Proposal and any Quotation or Tax Invoice.

      2.5    If NextPhaze is required to make changes to the Goods and Services in order to comply with any government regulations or safety standards, NextPhaze may do so without amending this Agreement so long as such changes do not alter the intent of this Agreement or materially impact upon or materially change the nature or quality of the Goods and Services.  If the changes do materially affect the nature or quality of the Goods and Services, NextPhaze shall notify the Client and use its best endeavours to negotiate any reasonable amendments to this Agreement.

3    QUOTATION

      3.1    Quotations are valid for 14 days from the date of issue.  After this period, an updated Quotation will be required before work can commence.

      3.2   NextPhaze quotes as accurately as possible on all projects, products and services and will make every effort to keep within the Client’s proposed budget (if any).  Any additional work that extends beyond what is included in the Quotation will incur additional Charges.   Written approval from the Client will be obtained by NextPhazeNextPhaze before any additional work commences.

      3.3    Prior to the commencement of any work by NextPhaze, the Client shall provide to NextPhaze the Client’s Information, which shall include all information or documents that the Client deems necessary in order for NextPhaze to perform the Services and supply the Goods.

      3.4    It is the Client’s responsibility to ensure that all information and documents provided to NextPhaze are accurate and complete.

      3.5   NextPhaze shall not take any ownership interest in the Client’s Information.

4    TERM OF AGREEMENT

      4.1    This Agreement shall commence on the date set out in the Proposal and/or Quotation, but if none, upon the earliest of the following to occur:
4.1.1    this Agreement is signed by all parties; or
4.2.2    the Client pays their first Invoice issued by NextPhaze; or
4.2.3    the Client instructs NextPhaze to proceed,
4.2.4    and will continue for the Term unless terminated earlier in accordance with Clause 17.

      4.2    The parties may during the Term agree in writing to change the Term, in which case the Term shall at that time become the new Term agreed between the parties.

      4.3    The parties may agree that the Term will proceed indefinitely unless terminated in accordance with Clause 17.

5    HOURLY RATE PROJECTS

      5.1   NextPhaze keeps accurate records of time spent on projects and will only invoice for the hours used.  Regular updates of hours will be provided on request.  Hourly rate projects will be charged in 15 minute increments with a minimum engagement of one hour.

6    MEETINGS

      6.1   NextPhaze offers new clients a free 30 minute initial consultation.  All additional meetings will be charged in 15 minute increments with a minimum engagement of one hour unless included in a Quotation.

7    CHARGES AND PAYMENT

      7.1    Unless otherwise stated in the Proposal or Quotation, upon commencement of the provision of the Goods or Services, NextPhazeNextPhaze will provide the Client with an Invoice on or around the first day of each calendar month which is due and payable pursuant to Clause 7.5.  Where the first day of the month falls on a Public Holiday or a weekend, NextPhaze may invoice the Client up to five days prior or after the first calendar day of the month, this invoice will be due and payable pursuant to Clause 7.5.

      7.2    Charges for Support which are not covered by a Support agreement are charged monthly in arrears.  All other Services are charged pursuant to Clause 7.1.

      7.3   NextPhaze may invoice the Client at any time outside Clause 7.1 for Services and Goods provided.

      7.4    Should NextPhaze incur additional costs over and above those included in the Proposal or Quotation as a result of:
7.4.1    inaccurate or incomplete Client’s Information or in any other way caused by the Client; or
7.4.2    any increase in Wholesalers’ prices to NextPhazeNextPhaze during the Term,
7.4.3    any unexpected freight, handling, or government charges,

NextPhaze shall be entitled to invoice the Client for these additional sums setting out the reason for same, and the Client must pay these additional sums.

      7.5    The Client shall pay all Invoices promptly within 14 days of receipt without withholding, deduction or offset of any amounts for any purpose.

      7.6    In addition to any other remedies that NextPhaze may have, NextPhaze may charge interest on any overdue payment (both before and after any judgment) at a rate of the current overdraft interest rate (at time of calculation) for overdrafts for $100,000.00 as set by Australia and New Zealand Banking Group Limited (ANZ) ABN 11 005 357 522 plus a further 0.50%.  Interest shall be charged on a simple interest basis and will not compound.

      7.7    If NextPhaze incurs any cost in recovering or seeking to recover overdue payments from the Client, the Client agrees to pay all costs of collection, including, without limitation, all legal costs and fees on the indemnity basis.

      7.8    In the event of two successive Invoices remaining unpaid after their due date, NextPhaze, at its sole discretion and without waiving any other rights it may have, may suspend, interrupt, or disconnect the Services and/or enter upon the Client’s premises (or any premises over which the Client has control) to recover the Goods.

      7.9   NextPhaze may, at its sole discretion, suspend, interrupt or disconnect any Services provided by NextPhazeNextPhaze to the Client while the Client remains in breach of any obligation to pay any sums due to NextPhaze on any account whatsoever.

      7.10  Where an Invoice remains unpaid in part or in full in respect of Goods:

                7.10.1    the Client must not supply any of the Goods to any person outside of its ordinary or usual course of business;
7.10.2    the Client must not allow any person to have or acquire any security interest in the Goods;
7.10.3    the Client must insure the Goods for their full insurable or replacement value (whichever is the higher) with an insurer licensed or authorised to conduct the business of insurance in the place where the Client carries on business;
7.10.4    the Client must not remove, deface or obliterate any identifying plate, mark or number on any of the Goods.

      7.11  No property in any Goods passes to the Client, and remains with NextPhazeNextPhaze or the relevant supplier to NextPhaze as the case may be, until NextPhaze has been paid in full for the Goods.

      7.12  Risk in the Goods shall pass to the Client on delivery to the Client. However, NextPhaze shall not be responsible for any loss of or damage to the Goods in transit.

      7.13  Delivery of Goods shall be deemed to have occurred upon physical delivery (but not installation) of the Goods to the Client’s premises, or in the case of Software where installation is required, installation at the Client’s premises. The Client authorises NextPhaze to deliver and install Goods at the address given to NextPhazeNextPhaze by the Client for that purpose.

      7.14  The Client grants NextPhaze the right to enter upon any premises which the Client occupies or over which the Client has control, to retrieve any Goods at any time within NextPhazes discretion before title in those Goods has passed to the Client.

      7.15  Despite Clause 7.10.1, if the Client supplies any of the Goods to any person before all moneys payable by the Client have been paid to NextPhaze, the Client agrees that:
7.15.1    it holds the proceeds of resupply of the Goods on trust for NextPhaze immediately when those proceeds are receivable or are received;
7.15.2    it must either pay the amount of the proceeds of resupply to NextPhaze immediately when they are received or pay those proceeds into an account with a bank or financial institution or deposit-taking institution as trustee for NextPhaze;
7.15.3    if the Client uses the Goods in some manufacturing or construction process of its own then the Client shall hold such part of the proceeds of such manufacturing or construction process as relates to the Goods in trust for NextPhaze. Such parts shall be deemed to be equal in dollar terms to the amount owing by the Client to NextPhaze.

8    LICENSING

      8.1    If any licence terms apply to any of the Goods or Services, NextPhaze will as soon as practicable provide a copy of those terms to the Client.  The Client undertakes to comply with all such terms in full.

      8.2    To the extent that the Goods or Services include computer software, data or documents in any form, the Client shall not copy such Goods in whole or in part except to make copies as are necessary for the purpose of a bona fide system backup and security. In no event shall the Client decrypt, reverse assemble or reverse compile any part of or the whole of such Goods.

9    GST

      9.1    Unless expressly included, the consideration for any provision of Goods or Services does not include GST.

      9.2   NextPhaze will recover from the Client the amount of such GST in addition to, at the same time and in the same manner as the Client is obliged to pay for the required Services or Goods

      9.3   NextPhaze will issue to the Client a Tax Invoice in respect of the payment due within 14 days from completion or an Adjustment Note in respect of any Adjustment Event within 21 days of payment being made.

10    INTELLECTUAL PROPERTY RIGHTS

      10.1   All Intellectual Property Rights in the Services and Original Software remain the property of NextPhaze.

      10.2   NextPhaze grants to the Client a non-exclusive and non-transferable license to use the Original Software solely for the Client’s own business.  The Client must not assign, sub license, lease, impose any charge upon any other party whatsoever for, reinstall, copy or otherwise part with possession of any of the NextPhazeNextPhaze Works without first obtaining NextPhaze’s written consent, which will be entirely within the discretion of NextPhaze to give or refuse.

      10.3   Title in any documents provided by the Client or Client’s Information, and all Intellectual Property Rights in such documents or Client’s Information (to the extent such rights were held by the Client at the time so provided) shall belong to and remain with the Client.

10.4   The Client grants NextPhaze a non-exclusive licence to use the Client’s Information, any documents provided by the Client and any such Intellectual Property Rights for the sole purpose of providing the Goods and Services under this Agreement.

10.5   Any of the NextPhaze Information and all Intellectual Property Rights in the same held by NextPhazeNextPhaze shall, unless otherwise agreed in writing between the Client and NextPhazeNextPhaze, belong to and remain with NextPhaze, subject only to the right of the Client to use the NextPhaze Information and such Intellectual Property Rights for the sole purpose of utilising the Goods and Services in accordance with and as anticipated by the terms of this Agreement.

11   LIABILITY

      11.1   NextPhaze is not liable for any loss or damage (including, without limitation, consequential loss) suffered by the Client as a result of any act, failure or omission whether deliberate, negligent or otherwise on the part of NextPhaze during the provision of the required Services, except to the extent that such liability cannot be excluded at law.

      11.2   To the extent that liability on the part of NextPhaze cannot be excluded then such liability of NextPhaze will be limited to one of the following (at NextPhaze’s option):
11.2.1    the provision of the relevant Goods or Services again; or
11.2.2    payment for the provision of the relevant Goods or Services again.

12   PROPOSAL

      12.1   Subject to clause 12.2, the terms of the Proposal, Quotation and/or Tax Invoice shall be incorporated into and form part of this Agreement and shall take precedence over any other conflicting clauses contained in these standard terms.

      12.2   Unless the Proposal, Quotation or Tax Invoice specifically states that clause 7.4 does not apply, clause 7.4 shall apply notwithstanding anything contained in the Proposal, Quotation or Tax Invoice

13   JURISDICTION

      13.1   This Agreement shall be governed by the laws for the time being of the State of Western Australia and the parties hereby submit to the non-exclusive jurisdiction of the Courts of Western Australia in relation to any matters arising under this Agreement.

14   SEVERABILITY

      14.1   If a provision, or part of a provision, of this Agreement is void, that provision is severable and the remainder of the Agreement has full force and effect.

15   CONFIDENTIAL INFORMATION

      15.1   All Client’s Information received by NextPhaze, and all NextPhaze Information received by the Client (together, “Confidential Information”), except such information which is in the public domain, is confidential and may only be used for the purposes for which it was provided under the Agreement.

      15.2   The Client and NextPhazeNextPhaze acknowledge and agree that each party must:
15.2.1   take all reasonable action necessary to maintain the confidentiality of the other party’s Confidential Information to include security against theft, loss or unauthorized disclosure;
15.2.2   not disclose the other party’s Confidential Information to any person except to employees or contractors obliged to the disclosing party under similar confidentiality restrictions;
15.2.3   take reasonable steps to enforce the confidentiality obligations including diligently prosecuting at its cost any breach or threatened breach of such obligations in relation to the Confidential Information;
15.2.4   on request by either party provide and update promptly a list of all of its representatives to whom Confidential Information of the other party has been disclosed.

15.3   The Client and NextPhaze agree, upon request of the other, to return within a reasonable time period all Confidential Information of the other party in any documents and other materials in any medium in the possession or under the power or control of the first party or any of its representatives when the document and other materials are no longer required for the purposes of performing the first party’s obligations or exercising its rights under this Agreement.

16   RESTRAINT

      16.1   During the provision of Services or Goods and for a period of twelve (12) months after the provision of Services or Goods, neither the Client nor a related entity of the Client, shall directly or indirectly engage the services of any person who at any time in the immediately preceding twelve (12) months has been employed or engaged under contract by NextPhaze.

      16.2   Upon breaching clause 16.1, the Client shall incur a liability to pay NextPhaze an amount of $1,000 (plus GST) for each day the person provides services, whether directly or indirectly to the Client or a related entity of the Client. This daily amount of $1,000 (plus GST) shall be due and payable immediately at the end of each day. Interest shall accrue on unpaid monies under this clause at the rate of 15% per annum accruing daily.  For the avoidance of doubt, the parties agree that the amount of $1,000 (plus GST) a day represents a genuine pre-estimate of the loss and damage that would be incurred by NextPhazeNextPhaze in respect of a breach of clause 16.1.

17   TERMINATION

      17.1   This Agreement can be terminated by either:
17.1.1   expiry of the Term (if specified in the Proposal or Quotation or otherwise agreed between the parties);
17.1.2   mutual agreement;
17.1.3   insolvency of either the Client or NextPhaze;
17.1.4   where there is no Term otherwise agreed, completion of delivery of the Goods and/or Services by NextPhaze to the Client;                    or
17.1.5   in accordance with clause 20.2.

      17.2   The Client acknowledges that NextPhaze may charge (and if so, NextPhaze will invoice the Client for) a termination fee of up to 25% of the Charges before agreeing to terminate this Agreement pursuant to clause 17.1.2.  The Client agrees to pay any such termination fee.

      17.3   For the avoidance of doubt, irrespective of the manner in which this Agreement terminates, the Client must pay to NextPhaze, in addition to any sums payable under clause 17.2, all Charges accrued in favour of or which otherwise were payable to or able to be invoiced by NextPhaze up to the time of termination of this Agreement.

      17.4   The Client may request to cancel Services and Goods in accordance with clause 17.1, provided the request is in writing and the Client provides 30 days’ notice to NextPhaze.

      17.5   Upon acceptance to the cancellation of Services and Goods in accordance with clause 17.1 and clause 17.4 the client forfeits any prepaid amounts including the notice period specified in clause 17.4

      17.6   Upon acceptance to the cancellation of Services and Goods in accordance with clause 17.1 and clause 17.4 NextPhaze may make available migration services for a nominated fee by NextPhaze.  Migration fees are required to be paid in advance.

18   FORCE MAJEURE

      18.1   Should either party be affected by an event beyond its reasonable control, not arising out of its own negligence or wilful conduct, which may include, but not be limited to floods, fires, storms or other natural disasters, any civil or labour unrest such as strikes, lockouts, riots or actions on the part of a government or other authority, and which interferes with the party’s ability to meet its obligations under this Agreement, that party shall immediately advise the other of the relevant event (“Force Majeure”).

      18.2   Any delay or inability by a party to perform its obligations under this Agreement shall not be deemed a breach if the delay or inability to perform is as a result of the Force Majeure of which the other party has been notified.

      18.3   Should the Force Majeure continue for a period of more than seven (7) days, the parties will negotiate in good faith to determine what, if any, steps should be taken to remedy the situation in a fair and equitable fashion or to allow for the termination of this Agreement.

19   RELATIONSHIP

      19.1   The parties agree and acknowledge that NextPhaze is an independent contractor and that nothing in this Agreement is intended to create a relationship of master and servant, employer and employee, partnership or joint venture between the Client and NextPhaze.

20   GENERAL

      20.1   Subject to clause 20.2, no modification, variation or amendment of this Agreement shall be of any force unless advised by NextPhaze in writing.

      20.2   If NextPhaze proposes to make any changes to the terms of this Agreement during the Term, NextPhaze must notify the Client in writing of any such proposed changes (“Proposed Change Notice”).  If the Client within 5 days of receiving a Proposed Change Notice:
20.2.1   objects to any those changes by written notice to NextPhaze (“Objection Notice”), then NextPhaze may within 7 days of receipt of the Objection Notice notify the client in writing that NextPhazeNextPhaze proposes to terminate this Agreement (“Termination Notice”), in which case this Agreement shall terminate on the day 14 days after receipt by the Client of the Termination Notice, but without prejudice to any of the rights of the parties which had accrued prior to its termination.  However, if NextPhaze does not so deliver a Termination Notice, then this Agreement shall remain on foot as it was unaffected by the proposed changes;

                20.2.2   does not deliver an Objection Notice, then this Agreement shall continue on foot as amended by the changes set out in the Proposed Change Notice with effect from the day 30 days after receipt by the Client of the Proposed Change Notice.

      20.3   This Agreement together with the Proposal (if any), Quotation (if any) and Tax Invoice (if any) comprises the entire agreement between the parties relating to the subject matter hereof and supersedes all or any prior agreement and no additional representation, waiver or undertaking by any party prior to the date hereof whether oral or in writing shall be of any force or effect.

21   SUPPLY OF GOODS AND SERVICES

      21.1   All Goods and Services supplied by NextPhaze are made, supplied or hosted directly by NextPhaze or are resold from another vendor.

      21.2   Any internet hosting and cloud based products and services being provided under this Agreement may be hosted or located at a variety of geographical places and, unless expressly agreed in writing otherwise, NextPhaze does not provide any warranty as to which location or locations apply.

If you are unclear on any aspect of this agreement, you should seek independent legal advice.

Published and Effective as at 1 December 2016

Next Phaze Pty Ltd (ACN: 604 672 719)
Level 24 Allendale Square
77 St Georges Terrace
PERTH  WA  6000
PHONE: 1300 761 587