1. Definitions and Interpretation

The following words in this Agreement have these meanings unless the contrary intention appears:

Additional Charge means a charge for the time of TAS employees, agents or subcontractors at TAS’ then current professional rates for services and then current price list for materials used or equipment provided.
Default Rate means 5% per month.
Force Majeure means any act or event beyond the control of a party, whether foreseen or not, which delays, interrupts or prevents such party from performing its obligations under this Agreement and will include, without limitation, strikes, work stoppages or other labour difficulties, fires, floods, or other acts of God, acts of terrorism, vandalism, war, or acts of government.
Live Use means that the Services provided by TAS are utilised by Client for their intended purpose.
Payment Schedule means the timetable for payment of the Price set out in the SoW.
Price means the price specified in the SoW and any Additional Charges.
Project Completion means completion of the site acceptance test, or operational use of the system or function that was implemented in the project.
Services means those services specified in the SoW.
Site means the address to which the Services are to be delivered.
SoW means the written statement of work entered into between TAS and the Client.
Taxes includes all taxes, duties and charges imposed or levied in connection with the supply of the Services supplied by TAS under this Agreement.

 2. Agreement

2.1 TAS has set out in this document our basic terms for providing professional services to you (Client), which, together with the SoW to which this is attached, will form the agreement between the parties (Agreement).

2.2 Unless the contrary intention is expressed, if there is an inconsistency between;

2.2.1 the SoW; and
2.2.2 the terms of this document, the SoW will prevail to the extent of the inconsistency. 

2.3 This Agreement contains the entire agreement between the parties concerning its subject matter and supersedes all previous agreements, understandings and negotiations. This Agreement applies to the provision of the Services to the exclusion of any other terms contained in a purchase order, letter or any other document of the Client. 

3. Services

3.1 On acceptance of the SoW by Client, TAS will provide the Services to Client in accordance with this Agreement.

4. Site Preparation

4.1 At its own cost, the Client must prepare the Site and provide TAS with reasonable access to the Site and other facilities (including adequate power, telephone, facsimile, email and office space, if requested by TAS) to allow TAS to perform its obligations under this Agreement. 

4.2 If TAS is delayed in providing any Services due to failure of Client to prepare the Site or provide information:
4.2.1 Client will be liable to TAS for all costs and expenses incurred by TAS directly or indirectly as a result of such delay; and
4.2.2 the time for performance of TAS’s obligations under this Agreement will be extended by the amount of any such delay.

5. Price and Payment

5.1 The Client must pay the Price in accordance with the Payment Schedule.

5.2 If there is no Payment Schedule or other terms of payment in the SoW, the Client must pay the Price as invoiced by TAS within 30 days from the date of issue of an invoice.

5.3 If TAS provides any equipment or services not specified in the SoW, TAS may charge Client an Additional Charge.

5.4 The Price is exclusive of Taxes.  The Client must pay all Taxes. In the event of a variation in the current applicable tax rate, TAS reserves the right to apply such variations according to the applicable law.

5.5 If the Client fails to pay any sum due under this Agreement by the due date, the Client must pay interest on that sum from the due date until the date of payment at the Default Rate. Interest is to be calculated on a daily basis.

6. Intellectual Property

6.1 TAS remains the absolute owner of any intellectual property rights created in connection with the Services or any previous contract that relates to the same intellectual property created but excludes IP already owned or derived directly from Client subject matter experts.

7. Timing for Performance by TAS 

7.1 Client acknowledges that times or dates for the provision of the Services are estimates only and TAS will not be liable for any delays.

7.2 To enable the attainment of milestones within the timeline included in this SOW, any designs, specifications and plans identified in the SoW as requiring Client’s approval should be approved or commented on in writing by Client within five (5) working days after the receipt of such drawings, specifications or plans. If Client does not respond within that period, it will be deemed to have accepted the designs, specifications or plans, as the case may be. Significant rework to any designs, specifications or plans identified in the SoW that is provided after the approval period may impact the delivery timelines.

8. Warranties 

8.1 TAS warrants that the Services will be executed using due care and skill. 

8.2 A 30 day defects liability period for the Services starts from the date of Project Completion or from the date on which the system commences Live Use, whichever occurs first, unless the SoW states otherwise. TAS is not obliged by this clause 8.2 to rectify a defect that is directly or indirectly caused by any modification or alteration to the Services by the Client or any other person.

9. Variations

9.1 Client may request variations to this Agreement in writing.

9.2 TAS will have no obligation to accept such variations. If the parties agree to a variation they will both execute a document that specifies the agreed variations to TAS’ obligations and any changes to the Price, the Services and the Payment Schedule. 

10. Confidential Information and Publicity

10.1 Each party agrees that all non-public or proprietary information relating to the business, technology or affairs of the other provided or disclosed under this Agreement or during the preceding negotiations is confidential.

10.2 Except as required by law, neither party will use or disclose such confidential information to any third party without the prior written consent of the other.

10.3 Unless required by any legislation, rules of a stock exchange or other government regulation, no public announcement concerning this Agreement will be made without the prior consent of both parties. 

 11. Insurance

11.1 Client acknowledges that TAS has the following insurance policies in place:
11.1.1 public liability insurance of $20 million for each occurrence;
11.1.2 professional indemnity insurance of $10 million.

12. Implied Terms

12.1 Subject to clause 12.2, any term which might otherwise be implied in this Agreement is expressly excluded. 

12.2 Clause 12.1 does not apply to any term or consumer guarantee implied or imposed by legislation where that legislation prohibits the exclusion or modification of such term or consumer guarantee. Where such term or consumer guarantee cannot lawfully be excluded or modified, TAS’ liability for breach of such implied term or consumer guarantee is limited at the sole discretion of TAS to re-supplying the Services or paying for the cost of them being re-supplied.

13. Limitation of Liability and Indemnity

13.1 Notwithstanding any other term of this Agreement, TAS’ total liability under this Agreement whether in contract, tort (including negligence) or otherwise, is limited to an amount equal to the Price.

13.2 Notwithstanding any other term of the Agreement, TAS is not liable whether in contract, tort (including negligence) or otherwise for any loss of profit, consequential damage or loss (including, without limitation, loss of market, data, opportunity or contracts) whether to people or property arising directly or indirectly pursuant to this Agreement or the performance of the Services under this Agreement.

13.3 Notwithstanding any other term of this Agreement, TAS’ liability for any loss or damage arising as a consequence of a breach of this Agreement is reduced proportionally to the extent the act or omission (deliberate or negligent) of the Client or any person (other than TAS, its employees, agents or subcontractors) contributed to the loss or damage incurred.

13.4 TAS will not be liable for damage or loss that is the consequence of:
13.4.1 incorrect or incomplete information supplied by the Client;
13.4.2 operational cessation;
13.4.3 loss of data. The Client must ensure that back-ups are made of programs and files and copies of other data that are made available by the Client to TAS; and
13.4.4 any shortcoming of the Client in the performance of its obligations including the granting of full assistance in implementing this Agreement.

13.5 Where damage or loss occurs as contemplated in clause 13.4 and such damage or loss leads to any claim by a third-party against TAS, the Client indemnifies  TAS under this Agreement whether in contract, tort (including negligence) or otherwise, with the Client’s indemnity limited to the amount equal to the Price..

13.6 No claim may be brought against TAS where the Client has the rights under contract in respect of the cause of the damage to claim directly against a third-party or its insurer.

14. Force Majeure

14.1 A party will not be liable to the other if performance of its obligations to the other party is delayed, impeded or prevented by Force Majeure. 

14.2 If delay in the performance of this Agreement due to Force Majeure continues for more than one (1) month, either party may terminate this Agreement by written notice to the other party.

15. Suspension

15.1 If the Client fails to pay any sum due under this Agreement by the due date, TAS may, in addition to its other rights under this Agreement, suspend providing the Services, until all overdue amounts are paid.

16. Termination

16.1 TAS and the Client may terminate this Agreement by providing written notice to the other party in any of following events or circumstances:
16.1.1 if the other party is in breach of any of the terms of this Agreement which is capable of remedy and fails to rectify the breach within thirty (30) days of the receipt  of a notice from the first party requesting such rectification;
16.1.2 if the other party is in breach of any of the terms of this Agreement which is not capable of remedy;
16.1.3 if the other party passes a resolution for winding up or liquidation (except for the purpose of reconstruction or amalgamation);
16.1.4 if a receiver and/or manager is appointed in respect of any property or assets of the other party;
16.1.5 if the other party enters into any scheme of arrangement for the benefit of creditors; or
16.1.6 if any petition is presented to wind up the other party.

17. Non-Solicitation

17.1 The Client must not, during the term of this Agreement and for a period of six months after expiry or termination of this Agreement howsoever caused, solicit or engage TAS’ employees, agents or subcontractors who have been employed or engaged in the provision of the Services (in whole or part) to the Client.

17.2 If the Client breaches clause 17.1, Client indemnifies TAS against all damages, losses, costs, and expenses that are incurred as a result of such breach including (without limitation) the costs incurred in employing a substitute person and training that person to a similar standard to the person who has been solicited. This clause is without prejudice to TAS’ ability to seek injunctive relief. 

18. Miscellaneous

18.1 Nothing contained or implied in this Agreement will create a relationship of partnership or agency between the parties.

18.2 Neither party has any authority to bind the other party to any obligation.

18.3 Each party acknowledges that in entering into this Agreement it has not relied on any representations or warranties by the other, except as expressly contained in this Agreement.

18.4 The clauses in this Agreement relating to Confidential Information and indemnities are continuing obligations, which will survive the expiry or termination of this Agreement.

18.5 Each and every obligation contained in this Agreement will be treated as a separate obligation and will be severally enforceable notwithstanding the non-enforceability of any other such obligation.

19. Governing Law

19.1 This Agreement and all aspects of TAS’ engagement and performance of the Services are governed by, and construed in accordance with, the laws applicable in the State of New South Wales and the parties agree to submit to the non-exclusive jurisdiction of the courts of New South Wales.