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1 Term of Agreement

1.1 This Agreement will commence on the date the last of the parties’ signs this Agreement and will continue until terminated in accordance with clause 15.

2 Services

2.1 Rachis must provide the Services to the Client during the Service Period.

2.2 The parties may, by Change Order, agree that Rachis will provide services different from or in addition to those set out in this Agreement, in which case the terms on which those services are provided will be as agreed from time to time.

2.3 Subject to clause 3, Rachis must complete the Services such as to supply the Deliverables by the Service End Date.

2.4 Unless otherwise agreed in writing, Rachis will perform the Services:

(a) during Rachis’s normal business hours; and

(b) at the Site (or at such other site as determined by Rachis in its absolute discretion).

2.5 Rachis may use any competent and qualified director, officer, employee, agent or subcontractor to provide the Services (or any part of them) or assist Rachis to provide the Services (or any part of them).

2.6 Nothing in this Agreement will be interpreted to mean that ownership of Rachis Equipment or any other item will pass from Rachis to the Client.

2.7 Rachis is engaged as an independent consultant of the Client in the performance of the Services. Nothing in this Agreement will be taken to have created a relationship of agency, employee and employer, or a partnership between the parties. It is acknowledged that neither party has the right or authority to bind the other to any agreement with any third party.

4 Client’s obligations

4.1 Without limiting its other obligations under this Agreement, the Client must:

(a) give evidence of insurance required under clause 14;

(b) do all things necessary to procure the compliance of its employees and contractors and associated entities with its obligations under this Agreement;

(c) promptly provide to Rachis copies of any documents, data or information required to be produced or obtained by the Client under this Agreement or requested by Rachis to enable it to carry out the Services and supply the Deliverables;

(d) allow Rachis to leave Rachis Equipment at the Site;

(e) maintain adequate security at the Site;

(f) if the Client is not the owner of the Site, obtain, and maintain, access and rights of access to the Site (and rights of access to and from the Site) from the relevant owner of the Site and surrounding areas (including where necessary a lease or licence) during the Service Period to the extent necessary to enable Rachis to provide the Services and leave Rachis Equipment at the Site;

(g) not, during the Service Period or for a period of 12 months following theService End Date, employ or offer employment to any current or former Personnel of Rachis without the written consent of Rachis, which consent may be given or withheld by Rachis in its absolute discretion;

(h) provide Rachis (at the Client’s cost) with such assistance as may be reasonably required to facilitate Rachis in performing the Services including, without limitation providing Rachis with access to, and use of, all information, data, documentation, computer time, facilities, working space and office services deemed necessary by Rachis; and (i)not interfere with or remove the Rachis Equipment, any electrical equipment or wiring, or any other part of the Rachis Equipment without the express prior consent of Rachis

5 Acceptance

5.1 Acceptance of Deliverables will occur upon the earlier of:

(a) the date Rachis demonstrates to the Client, by the successful completion of acceptance tests or otherwise, that the Deliverables substantially conform to the acceptance criteria specified in the Statement of Work; or

(b) the date that the Client uses the Deliverables for any purpose other than performing acceptance tests.

5.2 Acceptance will not be delayed for any minor non-conformance with the requirements specified in the Statement of Work. Following acceptance, Rachis will use reasonable commercial efforts to correct any minor non-conformance that appears during acceptance testing.

5.3 If acceptance testing is delayed for reasons attributable to the Client, acceptance will be deemed to occur on the 10th day after notice by Rachis that the Deliverable is ready for acceptance testing.

6 Licences

6.1 Unless otherwise agreed in writing, when Rachis supplies the Client with a Deliverable that in whole or in part consists of Software (sometimes referred to in this clause 10 as a “Software Deliverable”), the Software Deliverable will be supplied in object code form only.

6.2 Upon Client acceptance of a Deliverable and receipt by Rachis of the associated payment in full, Rachis grants the Client a non-exclusive, perpetual, nontransferable licence to use the Deliverable for its own internal purposes. The Client’s license confers no title or ownership in the Deliverable and no rights in any associated Software Deliverable source code, and will not be construed as a sale of any rights in the Deliverable or the media on which it is recorded or printed.

6.3 Unless otherwise authorised by Rachis, the Client may only make copies of Deliverables for archival purposes, or when copying is an essential step in the authorised use of a Software Deliverable on a backup controller, processor or other hardware device.

6.4 The Client will label each copy of Deliverables made under Section 6.3 above with the copyright notice that appears on the original.

6.5 The Client will not market, sublicense or otherwise provide the original, any part of the original, any copy or partial copy, or any derivative of a Deliverable to any third party.

6.6 The Client’s licence does not include the right to updates, upgrades or other enhancements to a Deliverable.

6.7 The Client will not disassemble or decompile any Software Deliverable without Rachis’s prior written consent. Where the Client has other rights under statute, the Client will provide Rachis with reasonably detailed information regarding any intended disassembly or decompilation. The Client will not decrypt any Software Deliverable unless necessary for legitimate use of the Deliverable.

6.8 Rachis may terminate the Client’s licence in any Deliverables upon notice for failure to comply with the terms of this Agreement. In the event of termination of the Client’s license, the Client will immediately destroy or return to Rachis the affected Deliverable and all partial or complete copies, or provide satisfactory evidence of their destruction to Rachis.

6.9 The Client grants Rachis a non-exclusive, worldwide, royalty-free licence to use, copy, make derivative works of, distribute, display, perform, and transmit the Client’s pre-existing copyrighted works or other intellectual property rights to the extent necessary for Rachis to perform its obligations under this Agreement.

6.10 The Client will be responsible at all times for the supervision, management and control of the Deliverables and any results obtained from the Deliverables, including without limitation all responsibility for maintenance of proper machine configuration, audit controls, operating methods, error detection and recovery procedures, back-up plans, security, insurance, maintenance and all other activities necessary to enable the Client to use the Deliverables.

7 Payment

7.1 The Client will pay Rachis, for the provision of the Services and supply of the Deliverables, the Fees

7.2 The Client must pay the Deposit to Rachis by electronic transfer of cleared funds within 21 days of the date of this Agreement.

7.3 Rachis must apply the Deposit as a credit against invoices provided by it to the Client under clause 7.1 such that the proportion of the Deposit credited against each invoice is equal to the proportion that the total amount payable by the Client under the invoice bears to the total Fee that will be payable under this Agreement, as estimated by Rachis.

7.4 For the sake of clarity, the Deposit is not refundable to the Client in any circumstances, except for a breach of this Agreement by Rachis, in which case it will first be applied as a credit towards all amounts to which Rachis is entitled under this Agreement, and the remaining balance will be repaid to the Client.

7.5 Rachis will provide Tax Invoices to the Client, and the Client must pay those invoices, in accordance with this clause 7.

7.6 Periodic charges under this Agreement will be calculated on a calendar month basis and pro-rated for any partial month.

7.7 The Client must reimburse Rachis for all reasonable Out-of-Pocket Expenses incurred in performing the Services and supplying of the Deliverables.

7.8 Rachis will record the activities performed and Out-of-Pocket Expenses incurred in performing the Services.

7.9 The Fees payable under this Agreement relate to the supply of the Services at the date of this Agreement only, and should any other Services be requested by the Client, and Rachis agrees to that request (which it may do in its discretion), Rachis reserves the right to vary the Fees.

7.10 If an act of the Client prevents Rachis from performing any of the Services, Rachis is entitled to be paid the Fee relating to those Services as if they had been performed.

7.11 If the Client fails to pay an amount due under this Agreement on the due date, the Client must pay interest on that amount at the rate of 2% per month or part thereof from the due date until the date of payment.

7.12 Rachis’s right to require payment of interest under clause 7.9 does not affect any other rights or remedies it may have relating to any failure to pay an amount due under this Agreement.

8 Goods and Services Tax

8.1 Unless specifically described in this Agreement as ‘GST inclusive’, any sum payable (or amount included in the calculation of a sum payable), or consideration to be provided, under or in accordance with this Agreement does not include any amount on account of GST.

8.2 Where any supply to be made by one party (Supplier) to another party (Recipient) under or in accordance with this Agreement is subject to GST (other than a supply the consideration for which is specifically described in this Agreement as ‘GST inclusive’):
(a) the consideration payable or to be provided for that supply but for the application of this clause (GST Exclusive Consideration) will be increased by, and the Recipient will pay to the Supplier, an amount equal to the GST payable by the Supplier in respect of that supply; and
(b) the Recipient must pay that additional amount at the same time and in the same manner as the GST Exclusive Consideration payable or to be provided for that supply.

8.3 If any payment to be made to a party under or in accordance with this Agreement is a reimbursement or indemnification of an expense or other liability incurred or to be incurred by that party, then the amount of the payment must be reduced by the amount of any input tax credit to which that party is entitled for that expense or other liability, such reduction to be effected before any increase in accordance with clause 8.2.

8.4 Notwithstanding any other provision of this Agreement, the Recipient need not make any payment for a taxable supply made by the Supplier under or in accordance with this Agreement until the Supplier has given the Recipient a Tax Invoice in respect of that taxable supply.

8.5 If an adjustment event has occurred in respect of a taxable supply made under or in accordance with this Agreement, any party that becomes aware of the occurrence of that adjustment event must notify each other party to that taxable supply as soon as practicable, and all of those parties agree to take whatever steps are necessary (including to issue an adjustment note), and to make whatever adjustments are required, to ensure that any GST or additional GST on that taxable supply, or any refund of GST (or part thereof), is paid no later than 28 days after the Supplier first becomes aware that the adjustment event has occurred.

8.6 A word or expression used in this clause which is defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) has the same meaning in this clause.

9 Warranties

9.1 Rachis will perform the Services in accordance with generally recognised commercial practices and standards. Rachis must re-perform any Services not performed in accordance with the foregoing warranty, but only if Rachis receives notice from the Client within 30 days after such Services were performed.

9.2 Rachis warrants that Deliverables will substantially conform to the acceptance criteria specified in the Statement of Work for a period of 90 days from the date of acceptance.

9.3 Rachis does not warrant that the operation of Deliverables will be uninterrupted or error free or conform to any reliability or performance standards beyond those specified in the acceptance criteria nor does it warrant that the Deliverables will be compatible with future Rachis products or those of other vendors.

9.4 If Rachis receives notice during the warranty period of any substantial nonconformance with the acceptance criteria that materially impairs the functioning of a Deliverable, Rachis will, at its option, either correct the non-conformance or provide a work-around which substantially remedies the non-conformance.

9.5 If Rachis is unable within a reasonable time to comply with the foregoing obligations, Rachis will refund a reasonable portion of the price stated in the Statement of Work upon prompt return of the affected Deliverable to Rachis, and/ or delivery to Rachis of proof of the destruction of the affected Deliverable.

9.6 The warranties provided in this Section 6 will not apply in the event of deemed acceptance under Sections 5.1(b) or 5.3 above, or to defects or non-conformance resulting from:

(a) unauthorised, improper or inadequate maintenance by the Client or any third party;
(b) Software, hardware, interfacing, or supplies not supplied by Rachis;
(c) unauthorised modification of Deliverables or any portion thereof;
(d) improper use or operation of Deliverables or any portion thereof or the Client’s failure to comply with the applicable environmental specification; or
(e) improper site preparation or maintenance by the Client or a third party.

9.7 The Client must not rely on any representations by Rachis or any of its Personnel pursuant to or in the course of the provision of the Services.

9.8 To the extent permitted by law the above warranties are exclusive and no other warranty, condition or representation, whether written or oral, is expressed or implied and to the extent permitted by law, Rachis specifically disclaims the implied warranties of merchantability, fitness for a particular purpose, title and non-infringement.

10 Limitation of Liability

10.1 Notwithstanding anything else in this Agreement, to the extent permitted by law and neither Rachis nor its Personnel will be responsible for:

(a) lost or altered files, data or programs or damage to computer hardware (unless the loss, alteration or damage was wholly as a result of a negligent act or omission of Rachis);
(b) unauthorised copying of Client Confidential Information or intellection property by a third party (providing that Rachis has complied with its obligations under clause 13);
(c) damages relating to the Client’s procurement of substitute products or services (i.e., “cost of cover”); or
(d) incidental, indirect, special or consequential damages, including downtime costs, lost profits or goodwill arising under or pursuant to or in connection with this Agreement, the provision of any Service or the reliance by the Client on any information provided in the course of the Services.

10.2 Furthermore, to the extent that Rachis is liable for any loss or damages suffered by the Client, the amount that Rachis will be liable for is limited to the total amount of Fees paid by the Client to Rachis under this Agreement, and the Client releases and indemnifies Rachis from any liability in excess of this amount.

11 Legislative, regulatory and government requirements

11.1 Each part acknowledges that it is responsible for complying with all legislative, regulatory and other government requirements for itself including in relation to workers compensation, entitlements and the payment of all taxes and superannuation contributions in respect of its employees, contractors and agents.