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Terms and Conditions
Terms and Conditions
Terms and Conditions
These Terms and Conditions are incorporated in and apply to any Services Proposal and will govern all
Services which Blue Crystal Solutions (BCS) may agree to provide for Customer or on its behalf (whether
specified in a Services Proposal or otherwise).
1 Contract Formation
The Parties agree that an Agreement will be concluded when (i) the Customer accepts a Services
Proposal; or (ii) BCS otherwise agrees to provide any Services requested by the Customer.
This Agreement constitutes the entire agreement between the Parties regarding the matters set out
in it and supersedes any prior representations, understandings or arrangements made between the
Parties, whether orally or in writing.
In the event of any inconsistency between the Terms and Conditions and the Services Proposal,
the provisions of the Services Proposal will prevail to the extent of the inconsistency.
2 Duration of the Agreement
The Agreement commences on the Commencement Date and continues for the Services Duration,
unless terminated earlier in accordance with the Agreement.
Unless otherwise specified in the Services Proposal, the Service Duration may be extended for a
further period of one year after expiry by the written agreement of the Parties. Any extended term
will be on the same terms and conditions of the Agreement (subject to any applicable Service Fees
adjustments), unless otherwise agreed in writing.
3 Non-exclusive Appointment
Customer will receive the Services from BCS, and BCS will provide the Services to Customer, on a non-
exclusive basis.
4 General BCS Obligations
BCS agrees that it and its Personnel will provide the Services:
(i) in accordance with the provisions of the Agreement and:
A. all applicable laws and regulations; and
(ii) in a professional manner with due skill and care and in accordance with reasonable industry
standards;
(iii) using appropriately skilled and qualified Personnel; and
(iv) acting honestly, ethically, professionally and courteously in all dealings with Customer, its
customers, officers, employees and other contractors; and
BCS will provide privacy and security training for all staff who access Customer’s Data or
Computer Systems.
BCS will provide Services in accordance with the timeframes set out in the Services Proposal (as
varied by agreement) provided that BCS will be entitled to an extension of time for performance
and will not be liable for any delay caused by the Customer or the Customer’s other contractors
(“Customer Delay”) or any other matter beyond the direct control of BCS. If a Customer Delay
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causes BCS any loss or expense then BCS shall be entitled to an appropriate variation of the
Service Fees.
Variations - If BCS suggests or Customer requests a variation of the Services or any other terms
of the Agreement (a “Change Request”), BCS will provide Customer with a written proposal
(“Variation Proposal”) specifying the cost and other terms upon which BCS would be prepared to
agree to the variation. If BCS expects that the preparation of a Variation Proposal will take more
than 2 person days of work, it may require Customer to agree to pay BCS for the preparation of the
Variation Proposal (at then applicable rates) as a pre-condition of preparing the Variation Proposal.
The Parties agree to review and discuss any Variation Proposal in good faith but neither Party is
obliged to agree to any variation. Once accepted, a Variation Proposal will be deemed to be
incorporated in this Agreement.
Acceptance process – Unless otherwise specified in the Services Proposal, the following
provisions will apply to the acceptance of Services and achievement of milestones. BCS may
notify Customer in writing that BCS considers that a relevant part of the Services has been
satisfactorily completed or a milestone has been achieved (a “Completion Claim”). Upon receipt of
a Completion Claim, Customer will (within 14 days) notify BCS that (i) it accepts that the Services
have been satisfactorily completed or the milestone has been achieved; or (ii) notify BCS that it
considers that the Services have not been satisfactorily completed or that the milestone has not
been achieved in which case Customer must also provide comprehensive written details of the
grounds on which Customer has made this determination (a “Completion Claim Rejection”). If BCS
receives a Completion Claim Rejection within the specified time and accepts the matters asserted
by Customer, then BCS will address the issues identified in the Completion Claim Rejection and
will then submit a further Completion Claim. The provisions of this sub-clause will apply to any
additional Completion Claim. If BCS disputes the Completion Claim Rejection, then BCS may
invoke the dispute resolution process in clause 16. If Customer fails to respond to a Completion
Claim within the time specified in this sub-clause, then Customer will be deemed to accept that the
Services have been satisfactorily completed or the milestone has been achieved.
Third party products and services – Unless otherwise specified in the Services Proposal, if BCS
agrees to supply or procure the supply of any third party products or services for Customer, then:
(i) those third party products will be supplied subject only to the relevant third party’s warranty
and other terms and conditions;
(ii) your rights to use any third party software products or services which we procure on your behalf
will be governed by the terms and conditions of the relevant third party’s terms and conditions;
and
(iii) if we agree to procure problem resolution, maintenance or support services on your behalf with
respect to any third party products, then we will not be liable for any failure or deficiency in the
provision of these services by the third party.
BCS agrees to implement and maintain appropriate administrative, technical, organizational, and
physical controls designed to provide a level of security to the Systems connecting with Customer’s
internal computing systems, or networks, and to protect the confidentiality, integrity, and availability
of Customer’s Data.in accordance with normal industry practice.
BCS must not store Customer’s Data outside Customer’s environment, except as specified in a
Services Proposal or upon prior written agreement of the Parties.
5 Customer’s Data
BCS acknowledges and agrees that:
(i) Customer retains ownership of Customer Data and BCS obtains no right, title or interest with
respect to any Customer’s Data, other than a right to use Customer’s Data for the sole
purpose of, and only to the extent required for, the carrying out of the Services; and
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(ii) Customer’s Data is Confidential Information.
BCS will immediately notify the customer where it is or may be required by Law to disclose any
Customer Data to any third party.
BCS will not:
(i) transfer, store, process, access, disclose or view Customer’s Data; or
(ii) perform any of its obligations under this Agreement which could involve Customer’s Data
being stored, processed, accessed, disclosed or viewed outside of Australia.
6 BCS Warranties
BCS warrants that:
it has the right to enter into the Agreement and perform the Services;
the execution, delivery and performance of the Agreement by it does not contravene any
contractual, legal or other obligation that applies to it;
it holds all licenses, permits, consents and authorisations required under any law in relation to the
provision of the Services;
any goods, equipment or materials sold by BCS to Customer in connection with the Services will
be of merchantable quality and unless otherwise agreed, new;
it will take care in accessing or utilising the Computer System and will take reasonable measures
to minimise the risks of any damage to the Computer System, including by taking steps to prevent
Harmful Code from being introduced to the Computer System.
7 Customer’s Obligations
Customer will promptly perform all Customer Responsibilities. Customer shall use best
endeavours to perform all acts (including omitting to perform any acts) required to permit BCS to
provide the Services. Without limitation, Customer must promptly provide any information,
approval, assistance or other response requested by BCS.
Customer shall promptly communicate any problems with the provision of the Services.
From time to time, BCS may incur direct expenses (including, travel, accommodation and
consumables) to provide the Services. BCS shall seek the written approval of Customer before
such expenses are incurred. If Customer provides written approval for such expenses, Customer
shall reimburse BCS for any such approved expenses plus a 5% administration fee.
Customer must immediately notify BCS of any proposed or actual change to the Computer System
(such as, without limitation, changes to configuration, hardware, software, network connections).
BCS shall (acting reasonably) notify Customer of any necessary amendments (including pricing
variations) required to be made to the Agreement as a result of such changes. If those
amendments are not agreed by Customer, notwithstanding any other provision of the Agreement,
the issue may be referred by either Party to dispute resolution under clause 16.
Customer will take reasonable measures to implement, maintain and update appropriate measures
to prevent (i) the introduction or presence of Harmful Code within its Computer System; and (ii) the
introduction by or through the Customer of any Harmful Code to the systems of BCS..
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8 Payment
The Parties agree that in consideration for the Services provided by BCS, Customer will pay the
Services Fees to BCS from time to time and in accordance with the Services Proposal. Except as
otherwise specified, the Services Fees are exclusive of GST.
Unless otherwise specified in the Services Proposal, invoicing will be provided monthly, in arrears
and payment is due within 30 days end of month of invoice date.
Without limiting any other provisions in the Services Proposal relating to the adjustment of Service
Fees, Customer agrees that BCS will be entitled to increase the Service Fees if there is any
increase in the fees charged to BCS by any third party involved in the provision of the Services.
9 GST
A reference in this clause to a term defined or used in A New Tax System (Goods and Services
Tax) Act 1999 (Cth) is, unless the context indicates otherwise, a reference to that term as defined
or used in that Act.
Any amount referred to in this Agreement which is relevant in determining a payment to be made
by one of the Parties to the other is exclusive of any GST unless indicated otherwise.
If GST is imposed on a supply made under or in connection with this Agreement, the consideration
provided for that supply is increased by the rate at which that GST is imposed. The additional
consideration is payable at the same time as the consideration to which it relates.
The supplier must issue a tax invoice to the recipient of the supply at the time of payment of the
GST inclusive consideration or at another time agreed by the Parties.
If one of the Parties is entitled to be reimbursed for an expense or outgoing incurred in connection
with this Agreement, the amount of the reimbursement will be net of any input tax credit which may
be claimed by the Party being reimbursed in relation to that expense or outgoing.
10 Nature of Relationship
The Parties acknowledge that BCS is engaged by Customer as an independent contractor and
nothing in the Agreement constitutes either Party as agent, employee, director, venturer, trustee or
partner of the other Party or in a joint venture with the other Party.
Subject to the Agreement, the Parties acknowledge that BCS is solely responsible for controlling
the manner in which it provides the Services.
Neither BCS nor Customer shall hold itself out in any way as an agent, employee, director, trustee
or partner of the other.
Neither Party shall:
(i) bind or commit or purport to bind or commit the other Party in any way; or
(ii) pledge the credit of the other Party for any purpose.
11 Privacy
Each Party and its Personnel shall comply with the Privacy Act 1988 (Cth) as though it were a person
subject to those Laws, even if it is not otherwise bound by those Laws as well as any other law or
regulation applicable in providing the Services under the Agreement.
Customer must ensure that it obtains all necessary consents from any individual whose Personal
Information is submitted to BCS or made available by Customer for access by BCS.
BCS must:
(a) only use Personal Information for the sole purpose of carrying out BCS’s obligations and
performance of the Services in accordance with the Agreement;
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(b) not disclose the Personal Information to any person without Customer’s prior written consent,
which may be given in respect of classes or categories of subcontractors or types of
subcontracted activities;
(c) not transfer the Personal Information outside Australia or knowingly allow it to be accessed from
outside Australia;
(d) not do any act or engage in any practice that would breach the Privacy Act or which if done or
engaged in by Customer would be a breach of the Privacy Act;
(e) comply with, carry out and discharge the obligations contained in the Privacy Act as if it were the
Customer carrying out and discharging those obligations;
(f) notify Customer immediately upon becoming aware of a breach or possible breach of any
obligations in this clause, whether by BCS or its Personnel;
(g) take reasonable measures to ensure that Personal Information held in connection with the
Agreement is protected against loss, unauthorised access or use, modification or disclosure and
other misuse;
(h) ensure that all of BCS’s Personnel who are required to deal with the Personal Information for the
purposes of this Agreement are made aware of the obligations of BCS under this clause;
(i) ensure that any agreement with any subcontractor who may be fulfilling a requirement in relation
to the Agreement which includes the handling of Personal Information, contains the same or
equivalent obligations to this clause, which are enforceable against the subcontractor;
(j) notify the Customer as soon as reasonably possible if BCS is approached by any privacy
commissioner or other authority concerning any Personal Information; and
(k) where required by Law to produce or disclose any information or to develop or provide any
response or explanation to any authority in relation to any incident (including any privacy breach)
concerning the handling, management, safekeeping or protection of any Personal Information in
connection with a relevant Agreement, BCS must (to the extent such action is permitted by Law),
provide Notice to Customer as soon as reasonably possible of the nature and content of the
information to be produced or disclosed and, prior to providing a response to the authority or
disclosing any Personal Information, engage in reasonable consultation with Customer regarding
its proposed response or explanation.
12 Security Incidents
(a) If BCS becomes aware that there has been a Security Incident BCS must immediately notify and
provide to Customer, to the extent known at the time, the date and time of the Security Incident and a
description of the Security Incident including details of:
(i) the impact of the Security Incident on the Services, computer programs, facilities and
equipment used by BCS and if the Security Incident has materially disrupted (i.e. have a
significant impact on) the availability of the computer programs, facilities and equipment used
by BCS to provide the Services;
(ii) how the incident was discovered by BCS and the nature of the Security Incident (e.g.
ransomware, Denial of Service Attack);
(iii) whether the Security Incident has been reported to any authorities; and
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(iv) any matters as reasonably requested by Customer in order for it to immediately report such
Security Incident to authorities in accordance with applicable Laws.
(b) For clarity, nothing in this clause 12:
(i) requires BCS to provide Customer with specific details that relate to BCS’s other customers
or which would breach any applicable Laws; or
(ii) limits BCS's obligations at Law with respect to the notification and resolution of Security
Incidents.
13 Subcontracting
(a) BCS may subcontract any part of the Services (i) as specified in the Services Proposal; or (ii) with the
prior written consent of Customer (not to be unreasonably withheld). Customer acknowledges and
agrees that BCS may use individual resources (who are subcontractors rather than employees) from
time to time without requiring Customer’s consent.
(b) Notwithstanding any subcontracting of the Services, BCS remains liable for the performance of its
duties and obligations under the Agreement.
14 Use of Customer’s Premises and Systems
To the extent that BCS and any of its Personnel are present at Customer’s Premises, or utilise
(whether onsite or remotely) any of Customer’s property, facilities, computer systems or software
(including the Computer System), BCS must comply (and must ensure that its Personnel comply)
with Customer’s reasonable lawful directions and policies which Customer has notified to BCS.
The policies may include, without limitation:
(i) policies with respect to occupational health and safety, equal opportunity and
antidiscrimination and confidentiality;
(ii) security policies which prescribe the level of security or access clearance applicable to the
Personnel;
(iii) policies and procedures with respect to access to the Computer System; and
(iv) induction requirements with respect to Customer’s Premises.
BCS must, and must ensure that its Personnel, use and access Customer’s Premises and the
Computer System:
(i) for the sole purpose of providing the Services;
(ii) in an efficient and responsible manner; and
(iii) in accordance with all laws and the Privacy Act.
15 Termination
Termination without fault
Unless otherwise specified in the Services Proposal, a Party may, at any time, terminate the
Agreement by giving the other Party not less than 60 days’ written notice of termination.
Termination for breach
(i) A Party may terminate the Agreement on written notice with immediate effect if the other
Party:
A. breaches a material obligation and has failed to remedy that breach within 30 days of
written notice by the other Party identifying the breach and requiring it to be remedied;
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B. suffers an Insolvency Event;
C. does not hold the necessary licenses or authorisations required by law to provide or
use the services or products.
(ii) Where the Agreement is terminated due to Customer’s material breach, Customer must pay
all amounts due for the period up to and including the effective date of termination.
(iii) Unless otherwise agreed in writing, termination of the Agreement has no effect on any other
agreements.
(iv) Termination of the Agreement is without prejudice to any right of action or remedy of a Party
which has accrued before termination or which may accrue at or after termination.
Consequences of Termination
Upon termination or expiry of the Agreement for any reason, or if otherwise requested by Customer
for any reason, BCS must immediately:
(i) cease using any Access Information used to provide the Services;
(ii) ensure that no changes are made to any Access Information without explicit written permission
from Customer;
(iii) provide to Customer all up to date documentation of Access Information used to provide the
Services;
(iv) comply with the relevant obligations in clause 17 (Confidentiality); and
(v) promptly return to Customer, or if directed by Customer, delete or destroy in a manner that
cannot be retrieved, all Confidential Information of Customer and all documents and other
tangible materials containing any Confidential Information of Customer obtained by BCS as a
result of, or pursuant to, the Agreement.
16 Dispute Resolution
If a dispute arises between the Parties concerning this Agreement, the disputing Party must give
written notice to the other Party specifying details of the dispute.
If the dispute is not settled by agreement within 14 days of service of notice it must be referred to
the Chief Executive Officer (or equivalent or delegate) of each Party for them to resolve by formal
or informal mediation.
If the dispute cannot be resolved pursuant to sub-clause (b) within one month of being referred to
the Chief Executive Officers, either Party may refer the matter to mediation by written notice to the
other Party.
If a Party refers a dispute to mediation, the Parties will promptly negotiate in good faith and seek to
agree the identity of the mediator. If the Parties are unable to agree on a mediator within 7 days,
then either Party may request the Resolution Institute to appoint a mediator located in Adelaide.
The Parties will co-operate and do all things reasonably required to ensure the mediation proceeds
and is completed as soon as practicable. Unless otherwise agreed by the Parties and the
mediator, the mediation will be conducted in accordance with the then applicable mediation rules of
the Resolution Institute. The costs of the mediator will be shared equally by the Parties.
If the dispute is not resolved by mediation, then either Party may commence legal proceedings
unless otherwise agreed.
A Party may seek urgent interlocutory relief without following the process in this clause.
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17 Confidentiality
Confidential Information
(i) Each Party and its Personnel acknowledge that they will come into possession or be in a
position to acquire Confidential Information.
(ii) Each Party and its Personnel acknowledge that maintaining the confidentiality of that
Confidential Information is important to them in order to maintain the value of that
Confidential Information.
(iii) Each Party and its Personnel acknowledge that the Confidential Information is made
available to them because it is fundamental and critical to the proper performance of their
duties and is:
A. confidential in nature; and
B. provided for the limited purpose of the performance of the Services pursuant to the
Agreement.
Obligations whilst providing Services pursuant to the Agreement
Neither Party nor its Personnel shall use any Confidential Information of the other Party other than
for the purposes of providing the Services pursuant to the Agreement and will not disclose any
Confidential Information to any person other than where disclosure is required by law.
Obligations after ceasing to provide Services
After BCS has ceased providing Services pursuant to the Agreement:
(i) neither Party nor its Personnel shall put any Confidential Information to any use which may
cause Loss, directly or indirectly, to the other Party; and
(ii) neither Party nor its Personnel will disclose any Confidential Information to any person other
than where disclosure is required by law.
Copies of Confidential Information
Neither Party nor its Personnel shall copy or permit to be copied or make use of any Confidential
Information other than for the purposes of the Agreement.
18 Intellectual Property
Ownership of Intellectual Property
(i) Each Party retains all rights to existing Intellectual Property (Background IP) used in the
performance of the Services.
(ii) Customer agrees that BCS is the owner of BCS’s Works (except any Customer’ Data,
Customer’s Confidential Information and Customer’s Works).
Use of Customer and Third Party Intellectual Property
BCS warrants that it:
(i) owns all Intellectual Property used in the performance of the Services; or
(ii) has a licence to use any third party Intellectual Property used in the performance of the
Services.
Customer warrants that it:
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(iii) owns all Intellectual Property it makes available to BCS for access and use in the
performance of the Services; or
(iv) has a licence that permits access and use by BCS of any third party Intellectual Property that
Customer makes available to BCS for access and use in the performance of the Services.
19 Insurance & Indemnity
Professional indemnity insurance
BCS will take all reasonable steps to maintain, professional indemnity insurance with reputable
insurers:
(i) for a total cover not less than $10 million for any one claim and not less than $10 million in
the aggregate for all claims during any 12 month period;
Workers compensation insurance
BCS must, maintain worker’s compensation insurance as required by law.
(c) Public and products liability insurance
BCS will maintain a policy of public and products liability insurance with reputable insurers for an
amount not less than $20 million per occurrence:
(d) Proof of insurance and notification
BCS must promptly provide the Customer with written certificates evidencing compliance with
these insurance obligations on written request.
(e) Indemnity
Each Party will indemnify and keep the other Party and its officers employees and contractors
(“those indemnified”) against all Claims and Loss which any of those indemnified suffers or incurs
directly or indirectly arising from a breach by the other Party of the relevant warranty in clause 18.
20 Limitation of Liability
Subject to the exclusions to the limitation on liability at clause 21(c) and any law to the contrary,
BCS’s liability to Customer (and any party claiming through BCS against Customer) for any Claims
for Loss made in connection with the Agreement for contract, tort (including negligence), under
statute, in equity or otherwise shall be as follows:
(i) If BCS is in breach of the Agreement BCS’s liability for the aggregate of all claims is strictly
limited to an amount equal to the Service Fees paid or payable by Customer in the 12 month
period prior to the first event giving rise to the claim:
(ii) BCS’s liability under clause 20(a) will be reduced in proportion to the extent that Customer or
its Personnel contributed to the Claim or Loss.
Subject to clause 20(c), neither Party is liable to make payment to the other Party, by way of
indemnity, damages or otherwise, in respect of any Indirect, Special or Consequential Loss or
Damage incurred or sustained by or claimed by that other Party.
Any limit on the liability of BCS under clause 21(a) or a Party under clause 21(b) does not apply in
relation to liability arising from or caused in any way by BCS performing the Services relating to:
(i) personal injury (including sickness and death) of any person;
(ii) loss of, or dmage to, tangible property;
(iii) an infringement of Intellectual Property Rights;
(iv) a breach of any obligations of confidentiality or privacy or a breach of clause 12, 12 or 18
under this Agreement (including contrary to the Privacy Act); or
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21 Miscellaneous Provisions
Entire Agreement
The Agreement is the entire agreement between the Parties as to its subject matter. It supersedes
all prior agreements, representations, conduct and understandings.
Costs
Each Party shall bear its own costs and expenses in respect of the preparation, negotiation and
execution of the Agreement.
Assignment
Neither Party shall assign, transfer, encumber or declare trusts in respect of the Agreement without
the consent of the other Party.
No Waiver
A Party’s failure or delay to exercise a power or right is not a waiver of that right, and the exercise
of a power or right does not preclude the future exercise of that or any other power or right.
Amendments
No amendment of, nor addition to, the Agreement is binding unless it is in writing and executed by
the Parties to the Agreement.
Survival
Clauses 5, 10, 11, 15, 16, 17, 18, 20 and 21 survive the termination or expiry of the Agreement.
Severability
If any of these terms and conditions are invalid or unenforceable, all other terms and conditions
that are self-sustaining and capable of separate enforcement without regard to the invalid or
unenforceable terms and conditions will be and will continue to be valid and enforceable.
Law
The law of the Agreement is the State of South Australia, and the Parties submit to the non-
exclusive jurisdiction of the Courts of South Australia and any proceedings brought in the Federal
Court of Australia must be instituted in its Adelaide Registry.
Counterparts
The Agreement may be executed in counterparts (including by facsimile or PDF). All executed
counterparts constitute one document.
Modern Slavery
Modern Slavery
(i) Each Party must comply with the Modern Slavery Law.
(ii) Each Party warrants that:
A. no investigation, proceeding, or claim has been initiated or is threatened or pending
against that Party or any subcontractor, by any governmental, administrative, judicial or
regulatory body, authority or organisation, in relation to any Modern Slavery Law;
B. it is not aware of any fact, situation or circumstance which might give rise to such an
investigation, proceeding or claim against it in relation to a breach of the Modern
Slavery Law;
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C. neither that Party nor (so far as that Party is aware) any of its subcontractors has at
any time been found by a court in any jurisdiction to have committed a breach of
Modern Slavery Law; and
D. it has in place appropriate policies and procedures to assess and address risks of
Modern Slavery in its operations and supply chain.
(iii) A Party must notify the other Party immediately if it becomes aware of or has reason to
suspect the existence of modern slavery in its operations or supply chain.
22 Definitions and Interpretation
Definitions
In this Agreement, the following terms have the following meanings:
Access Information means any usernames, passwords and access codes of Customer required
to access Customer’s Data necessary to perform the Services.
Agreement means this agreement comprising the Terms and Conditions and the Services
Proposal and any other document that incorporates these Terms and Conditions.
BCS means Blue Crystal Solutions Pty Ltd (ABN 18 110 487 075).
Business Day means a day other than a Saturday, Sunday or public holiday in Adelaide, South
Australia.
Claims means claims, damages, liabilities, judgments, losses, costs and expenses of every kind
and nature including legal fees.
Commencement Date means the date of the Agreement.
Computer System means Customer’s computer network, servers, workstations, equipment,
software or operating system, including Customer’s SQL Server database or Oracle database.
Confidential Information means, in respect of a Party, any and all information in or relating to that
Party and/ or any related body corporate of that Party which is obtained by the other Party as a
result of, or pursuant to, the Agreement, including (without limitation and as appropriate)
Customer’s Data and Access Information, information regarding supplier information, customer
information, information regarding current or future business interests, methodology or affairs of
that Party and/ or any related body corporate of that Party or of any entity with which they may deal
or be concerned including matters of a technical nature, administrative information, accounting
procedures, financial information, terms of agreements with third parties and any such other
information which may be notified by that Party and/ or any related body corporate of that Party to
the other Party which the other Party acquired solely by virtue of provisions of the Agreement, is
confidential by its nature or which the other Party knows or ought to know is confidential, and
includes the content of the Agreement but does not include:
(i) information which is or becomes a matter of public record, otherwise than as a result of a
breach of an obligation of confidentiality or any other deed or agreement to which that Party
is a party; and
(ii) information which that Party authorises in writing for the time being as not being Confidential
Information. A Party may at any time withdraw any authorisation given in terms of this
paragraph, in which case the information to which it relates will henceforth be Confidential
Information, but without affecting any communication made prior to the withdrawal of such
authorisation.
Customer means (a) the customer identified in a Services Proposal; or (b) if there is no Services
Proposal, the entity for which BCS has agreed to provide Services or Deliverables.
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Customers Data means all data and information relating to Customer, and its operations, facilities,
customers, Personnel, assets and programs in whatever form that information may exist and
whether entered into, stored in, generated by or processed through software or equipment by or on
behalf of Customer including (without limitation), Access Information, Personal Information,
Customer contact listings, Customer contracts and agreements, Customer billing/rates and pricing
agreements, supplier information, customer information, information regarding current or future
business interests, methodology or affairs of Customer and/or any related body corporate of
Customer or of any entity with which they may deal or be concerned including matters of a
technical nature, administrative information, accounting procedures, financial information, terms of
agreements with third parties and any such other information which may be notified by Customer
and/or any related body corporate of Customer.
Customers Premises means Customer’s premises notified to BCS by Customer from time to time.
Customer Responsibilities means all obligations and responsibilities of the Customer specified in
these Terms and Conditions or a Services Proposal.
GST means the goods and services tax, as governed by A New Tax System (Goods and Services
Tax) Act 1999 (Cth) and related legislation.
Harmful Code means any computer code which is or may be harmful to the Computer System
including (without limitation) “virus”, “malware”, “worm”, “Trojan Horse”, “trapdoor”, “software
switch”, “time bomb”, “slicing routine”, deliberate “corruptive code”, “logic bomb”, “disabling
routine”, unauthorised “expiration dates” or “bug” as those words are generally understood from
time to time within the technology industry and any equivalent or similar harmful, destructive or
corruptive mechanisms contained in software.
Indirect, Special or Consequential Loss or Damage means:
(i) any loss of income, profit or business;
(ii) any loss of goodwill or reputation; and
(iii) any loss of value of intellectual property,
and for the avoidance of doubt, does not include loss of Customer’s Data.
Insolvency Event means the occurrence of any one or more of the following events in relation to a
person:
(i) being in liquidation or provisional liquidation or under administration, having a controller (as
defined in the Corporations Act 2001 (Cth)) or analogous person appointed to it or any of its
property, being taken under section 459F(1) of the Corporations Act 2001 (Cth) to have failed
clause comply with a statutory demand, being unable to pay or stopping or suspending or
threatening to stop or suspend payment of its debts or being otherwise insolvent, taking any
step that could result in a person becoming an insolvent under administration (as defined in
section 9 of the Corporations Act 2001 (Cth)), entering into a compromise or arrangement
with, or assignment for the benefit of, any of its members or creditors;
(ii) any event that is analogous to any of the foregoing events.
Intellectual Property means patents, plant breeders rights, registered or unregistered trademarks
and service marks, registered designs, copyrights, database rights, design rights, confidential
information, applications for any of the above, and any similar right recognised in any jurisdiction,
together with all rights of action in relation to the infringement of any of the above.
Loss means all and any loss, cost, damage, fine, expenses (including legal costs and
disbursements), liability, death, injury or other detriment, economic loss including loss of use and
loss of trade.
Modern Slavery has the meaning given to it by the Modern Slavery Laws.
Title
Terms and Conditions
Terms and Conditions
Modern Slavery Laws means the Modern Slavery Act 2018 (Cth) as amended from time to time
and any replacement or similar law, rule or other legally binding measure of Australia.
Party means a party to the Agreement.
Personal Information means personal information as defined in the Privacy Act.
Personnel means a Party’s employees, officers, agents and subcontractors.
Privacy Act means the Privacy Act 1988 (Cth).
Security Incident means in relation to this Agreement:
(i) any unauthorised access to or unlawful use of, loss of, alteration of or disclosure of
Customer’s Data or Personal Information within the BCS's or its Personnel's possession or
control (including any data and information stored on the BCS’s equipment, computer
program or in the facilities used by the BCS to carry out the BCS's obligations under this
Agreement, or any unauthorised or unlawful access or modification to such equipment,
computer program or facilities);
(ii) any data breach under any Laws;
(iii) any Denial of Service Attack;
Services means any services which BCS has agreed to provide for or on behalf of the Customer
whether specified in a Services Proposal or otherwise and includes any Deliverables...
Service Duration means the period during which Services will be provided (a) as specified in the
Services Proposal; or (b) if there is no Services Proposal or the duration is not specified in the
Services Proposal, as specified by BCS.
Service Fees in respect of a Service, means the fees specified in item 7 of the Services Proposal.
Services Proposal means a written proposal that refers to these Terms and Conditions including
any proposal to which these Terms and Conditions are attached.
Tax Invoice means a tax invoice that complies with the provisions of the A New Tax System
(Goods and Services Tax) Act 1999 (Cth) and related legislation.
Terms and Conditions means these terms and conditions (as amended by written agreement)..
Works means, in relation to a Party, any work, matter or thing:
(i) relating to that Party and/ or any related body corporate of that Party’s business or products
including (but not limited to) software, data files, procedure manuals, reports,
correspondence, technical information, plans, charts, calculations, tables, schedules, video
and audio recordings, computer discs and other data; or
(ii) methods, processes, research, analysis, correspondence, reports, articles and other written
materials produced by that Party;
in each case, either:
(iii) created as a result of or by virtue of the performance of the Services; or
(iv) made using the resources, equipment, property or Confidential Information of that Party and/
or any related body corporate of that Party.
Interpretation
In this Agreement, unless a contrary intention appears:
(i) a reference to the Agreement is a reference to the Agreement and any relevant Services
Proposal as amended, varied, novated, supplemented or replaced from time to time;
Title
Terms and Conditions
Terms and Conditions
(ii) a reference to any legislation or any provision of any legislation includes:
A. all regulations, orders or instruments issued under the legislation or provision; and
B. any modification, consolidation, amendment, re-enactment, replacement or codification
of such legislation or provision;
(iii) words or expressions:
A. importing the singular include the plural and vice versa;
B. importing a gender include the other genders;
C. denoting individuals include corporations, firms, unincorporated bodies, authorities and
instrumentalities;
(iv) a reference to a Party to the Agreement or any other instrument includes that Party’s
executors, administrators, successors and assigns;
(v) where a word or phrase is defined or given meaning, any other part of speech or grammatical
form has a corresponding meaning;
(vi) a provision shall not be construed against a Party on the basis that the Party was responsible
for the drafting of the provision;
(vii) a reference to a Clause or Schedule is a reference to a clause or schedule of the Agreement;
and
(viii) any heading, index, table of contents or marginal note is for convenience only and does not
affect the interpretation of the Agreement.