DETAILED Commercial Terms
1. Definitions
1.1 Certain capitalised terms used in these terms are set out below. It will be of assistance to refer to those definitions when reviewing this Agreement. This Agreement includes a number of Schedules which detail more specifically the nature of the Services which are to be provided under that Schedule and certain relevant definitions.
2. Application of these Terms
2.1 These terms apply to the delivery of Services by Loop, the Customer is deemed to have Accepted them and an Agreement on these terms is created whenever the Customer:
A. Executes an Acceptance which is set out in a document issued by Loop,
B. Requests Loop to commence delivering the Services,
C. Issues a Purchase Order to Loop for supply of the Services, or
D. Pays Loop for any part of the Services.
2.2 Any other terms or conditions attached to or forming a part of a purchase order issued by the Customer do not form part of this Agreement.
3. Services to be performed by Loop
3.1 Loop will provide the Services for the Service Pricing to the Customer identified in the Commercial Details.
3.2 The details of the Services to be performed are as set out in the subject matter of the relevant Schedules to this Agreement.
4. Term
4.1 The Initial Term of the Agreement commences on the Commencement Date. Unless the Customer gives Loop written notice to terminate the Agreement at least 90 days prior to the end of the Initial Term or a renewed Term, as the case may be, the Agreement continues for successive terms of 12 months. The Service Pricing payable for a renewed Term must be the same amount as was payable immediately before expiry of the prior Term, unless varied pursuant to this Agreement or any variation of this Agreement.
5. Time and Materials Rates
5.1 At the Customer’s request, Loop will perform any out of scope services on a time and materials basis as set out in the Time and Materials Schedule.
5. Service Pricing and Payment Terms
6.1 During the Term, Loop must supply the Services and the Customer must pay the Service Pricing and any Additional Charges within 30 days after the date on which the invoice is rendered.
6.2 Loop will issue invoices for the Service Pricing to the address specified in the Commercial Details or as the Customer may otherwise specify in writing. Where a variation is made to the Services or Service Pricing, Loop must invoice the Service Pricing for the adjustments pro-rata to the end of the relevant current payment period. If the Customer disputes an invoice in part, it may defer payment of only that disputed part pending resolution of the dispute.
6.3 Loop must issue invoices for any Additional Charges when it has done any relevant work, supplied any relevant goods or incurred any relevant expenses.
6.4 Loop may, by giving at least 30 days’ written notice of the variation to the Customer, vary the Service Pricing:
A. At any time, to apply after the Initial Term expires, or
B. Where the Initial Terms exceeds 12 months, on each anniversary of the Commencement Date; and
C. To reasonably reflect exchange rate fluctuations, in circumstances where Loop has, with the Customer’s consent, sub-contracted the Services to a third party which has supplied its services for a fee expressed in a currency other than Australian dollars (such variation will be in addition to any other variation but must not occur more than once during each 12 month period).
6.5. If the Customer and Loop fail to agree on the varied Service Pricing within 30 days of the notice by Loop, either party may terminate the Agreement by giving 30 days’ written notice to the other party. This clause does not apply to variations pursuant to clause 6.4 (C).
6.6. Loop will adjust or vary the Service Pricing as required whenever changes are made to the Services. Such variations will be detailed in a Variations Schedule.
6.7. If the Customer fails to pay any amounts payable to Loop by the due date, Loop may, on 7 days’ written notice, suspend supply of all or any part of the Services until the Customer pays all such overdue amounts.
7. TAXES
7.1. The Service Pricing is exclusive of GST and any other taxes, duties and charges imposed or levied in Australia in connection with the supply of the Services. The Customer is liable for any new or varied taxes, duties or charges imposed after the Commencement Date in relation to the supply of the Services.
7.2 If GST applies to any supply made under or in connection with this Agreement. Loop must issue a valid tax invoice to the Customer and the Customer must pay the GST at the same time as it must pay the invoice for the Service Pricing or the Additional Charge.
8. Warranties
8.1. Loop warrants that it will provide the Services in a proper and professional manner and will ensure that the Services are performed by Personnel who are suitably qualified to perform the Services.
8.2. The Customer warrants that it has the appropriate licenses, rights and/or title to any Managed Asset that is the subject of the Agreement.
9. Insurances
9.1 Loop agrees to maintain the following insurance during the term of this agreement:
A. Professional liability $10,000,000 (each occurrence)
B. General Liability and Product Liability $20,000,000 (each occurrence)
C. Appropriate Workers compensation insurance in accordance with Australian law
9.2. If requested by the Customer, Loop will provide certificates of currency in respect of such policies.
9.3. The Customer should not assume that it will be entitled to the benefit of any insurance which is maintained by Loop. The Customer agrees to effect and maintain its own insurance for all relevant insurable interests.
10. Customer’s Obligations
10.1. The Customer must:
A. Provide Loop with reasonable assistance and information to assist it to provide the Services,
B. Supply all communication interfaces Loop requires to enable it to provide the Services, except those that Loop keeps on its own premises or installs at a Site for use in providing the Services,
C. Ensure that Loop’s information and materials in the custody of the Customer for the purposes of the Agreement are protected at all times from unauthorised access or use by a third party and from misuse, damage or destruction by any person,
D. Give Loop access to the Site for the purpose of providing the Services,
E. If requested, provide secure facilities at the Site for Loop to store tools, parts and other items necessary for it to perform its obligations under the Agreement,
F. Keep such records relating to use and performance of any relevant Managed Asset as Loop may reasonably request and ensure that Loop’s Personnel have access to such records at all reasonable times,
G. Comply with the Customer’s obligations set out in any relevant Schedule,
H. Carry out and maintain restorable back-up copies of all relevant software, (whether operating systems, discrete applications or configurations) and make the same available upon request, where Loop requires them to supply Services,
I. Maintain proper and adequate computer network maintenance agreements during the Term and,
J. Maintain a stable and redundant internet connection to enable Loop to obtain remote access.
10.2. If the Customer fails to promptly comply with any of the Customer’s obligations, Loop may, in its absolute discretion, suspend performance of all or any part of the Services affected as a result of such failure until the Customer has complied with its obligations.
11. Consent of Third Parties
11.1. Where the consent, approval or authority of a person other than the Customer is required in order to enable Loop to discharge its obligations under this Agreement lawfully and without infringing the rights of any person, the Customer must notify Loop of that requirement together with details of the relevant third party and obtain, (or assist Loop to obtain) that consent, approval or authority before Loop commences to provide that part of the Services for which the consent, approval or authority is required.
12. Access
12.1. If any Services are to be supplied at the Customer’s premises, Loop must be given access to those premises during reasonable hours for that purpose. The Customer shall ensure that the premises are suitably equipped and comply with all of Loop’s reasonable requirements. If Services are to be supplied by electronic remote access, the Customer will provide the required access to the Customer’s Managed Assets.
13. Permits
13.1. The Customer must obtain all necessary consents, permits, licenses or other authorities from the owner of any relevant equipment or premises, any relevant governmental, municipal, local or other competent authorities, or any others whose permission is or may be necessary for the supply of Services. Failure to obtain any one or other of the same shall not invalidate this Agreement or any part of it. The Customer will indemnify Loop in relation to any claim or Loss suffered by Loop as a result of the Customer’s failure to obtain such consent.
14. Subcontractors
14.1. Loop may subcontract such persons as it, in its discretion, considers necessary to enable it to fulfill its obligations under the Agreement. Loop is liable for any breach of the Agreement committed or caused by any of its sub-contractors.
15. Confidentiality
15.1 Neither party is permitted, without the prior written consent of the supplying party, to disclose or communicate to any third party or to their employees, servants, agents, contractors or consultants any Confidential Information or use any Confidential Information of a party for any purpose except for the purpose for which such Confidential Information was supplied or for the proper performance of the Agreement.
15.2. Each party agrees that the documents attached to, or otherwise incorporated in this Agreement, are confidential and must not be disclosed to any person (other than a party’s legal or financial advisors or as required by law) without the prior written consent of the other party.
15.3. The operation of this confidentiality clause survives the expiry or earlier termination of the Agreement.
16. Limitations and Exceptions
16.1. Other than in respect of its liability for death, personal injury or damage to tangible property, Loop’s maximum aggregate liability for any one or more claims arising out of performance of the Agreement is limited to an amount equal to the annual Service Pricing paid by the Customer at the date of the relevant event which gives rise to such liability.
16.2 Where Loop admits a liability to the Customer for a claim for a breach of the Agreement and the Customer has no right to terminate the Agreement on the grounds of the breach, or has elected not to terminate, Loop may, at its option, elect to apply the whole or part of any amount agreed to be paid to the Customer as a result of such breach as a credit to future Service Pricing payable by the Customer.
16.3. To the extent permitted by law, Loop has no liability to the Customer for any, indirect, consequential special, punitive or exemplary damages or Loss, loss of or corruption of data from any cause, loss of use, revenues, profits, goodwill, bargain or loss of opportunities or anticipated savings whether claimed in breach of contract, negligence or other tort or under statute.
16.4. To the fullest extent permitted by law the parties agree to exclude any terms which would otherwise be implied into the Agreement by any statute including the Competition and Consumer Act 2010 (the Act) and or the Australian Consumer Law.
16.5. Notwithstanding the other provisions of this clause 16, Loop’s liability for a breach of a condition, warranty or guarantee implied into the Agreement by the Act or the Australian Consumer Law is limited to the options set out in s64A of the Australian Consumer Law which may be exercised by Loop in the manner referred to in that clause. Subject to s64A of the Australian Consumer Law such options are, at Loop’s election:
A. If the breach relates to goods: to the replacement of the goods or the supply of equivalent goods, the repair of the goods, the payment of the cost of replacing the goods (or of acquiring equivalent goods); or to the payment of the cost of having the goods repaired, and
B. If the breach relates to services: to the payment of the cost of having the services supplied again or the supply of the services again.
16.6. Loop is not liable for any delay in providing Services, in particular but not limited to where any delay arises due to the fault of the Customer. Loop will however use its best efforts to cause the Services to be provided within the time periods specified in this Agreement.
17. Termination
17.1. If a party breaches a material provision of the Agreement, the other party may (after giving a notice to the party in breach which identifies the breach and requests its remedy):
A. Suspend provision of the Services or the payment of any amounts which would otherwise be due if the Services had not been suspended (as the case may be) until the breach is remedied by the party in breach, and
B. Terminate the Agreement, if the party in breach, remains in breach for a period of at least 90 days from the date of giving such notice of default.
17.2. Either party may terminate the Agreement immediately if the other party:
A. Enters into any arrangement between itself and its (or any class of its) creditors,
B. Ceases to be able to pay its debts as they become due,
C. Ceases to carry on business,
D. Has a mortgagee enter into possession,
E. Enters into liquidation or any form of insolvency administration, or
F. Has a receiver, a receiver and manager, a trustee in bankruptcy, an administrator, a liquidator, a provisional liquidator or other like person appointed to the whole or any part of its assets or business.
17.3. The Customer must, on termination by Loop, immediately pay to Loop the total of all amounts then due to Loop pursuant to this Agreement.
17.4. If Loop terminates the Agreement on any of the grounds set out in clauses 17.1 or 17.2, the Customer is not entitled to a refund or adjustment of any Service Pricing paid to Loop for Services which have already been performed.
17.5. Termination of the Agreement (for whatever cause) does not affect any right or cause of action which has accrued, at or prior to the date of termination, to the party who terminates the Agreement.
18. General Conditions
18.1. The Agreement is governed by the laws of the state of the Governing Law.
18.2. The Agreement supersedes all prior agreements, arrangements and undertakings between the parties and constitutes the entire agreement between the parties relating to its subject matter.
18.3. Each party agrees to observe and abide by the privacy obligations of the other party (including where relevant the privacy obligations of a party to any of clients or customers).
18.4. Variations. No variation of the Agreement is binding upon the parties unless made in writing signed by an authorised representative of each of the parties. Loop’s written acceptance of a written request (including a request made by e-mail) by the Customer for a variation to any Service is binding on both parties. Following an agreed variation, Loop must issue a Variation Schedule which details the particulars of any change in the Services and any relevant change to the Service Pricing or any Additional Charge. The matters set out in such Variation will be subject to these terms and will effect a variation of these terms in the manner detailed in the Variation Schedule. The parties agree to Execute such Variation.
18.5. Special Services and Provisions. This Agreement is varied in the manner detailed in the Schedule titled Special Services and Provisions.
18.6. Notices. Notices to or by a party may be delivered in person or are otherwise deemed to be received: if sent by post, 3 Business Days from and including the date of postage; or if by facsimile or email, when transmitted to the addressee provided that if transmission is on a day which is not a Business Day or is after 5.00 pm (addressee’s time), on the next Business Day.
18.7. Any provision or the application of any provision of this Agreement which is void, illegal or unenforceable in any jurisdiction does not affect the validity, legality or enforceability of that provision in any other jurisdiction or of the remaining provisions in that or any other jurisdiction.
18.8. A waiver of a breach of the Agreement or of any right, power, authority, discretion or remedy arising upon a breach of or default under the Agreement must be in writing and Executed by the party granting the waiver.
18.9. A party may only assign the Agreement and any rights under the Agreement with the prior written consent of the other party.
18.10. A party must not during the Term of the Agreement and for a period of 6 months after its expiry or earlier termination, solicit for employment, whether directly or indirectly or through a related corporation (as defined in the Corporations Act 2001) or otherwise, any person who is employed or contracted by the other party in connection with this Agreement, unless otherwise agreed in writing by the other party.
18.11. Neither party is liable to the other for the consequences of any delays or failure in its performance which are caused by any event beyond its reasonable control, including without limitation: acts of God, fire, flood, accident, terrorism, strike, labour problems and riots.
18.12. Title to Goods. All goods sold shall remain the sole and absolute property of Loop until the Customer has paid all Service Pricing in full. This Agreement creates a purchase money security interest, as defined in s20 of the PPSA, in all goods (and their proceeds) supplied now or in the future by Loop to the Customer and the Customer agrees to do all things necessary and execute all documents reasonably required by Loop to register the PMSI granted by the Customer under this Agreement and to ensure that Loop acquires a perfected security interest in the goods under the PPSA. Until title in the goods passes, the Customer waives its rights under the PPSA, to the extent that it is permitted by law.
By Executing the Acceptance, the Customer agrees to accept these terms. By returning this executed document to Loop, by hard copy or electronic form, the Customer thereby issues a Purchase Order to Loop to supply the Services referred to in the Commercial Details.
DEFINiTIONS
For the purpose of this Agreement the following definitions shall apply. Additional useful definitions which are commonly used by Loop Personnel have been included in the various Schedules to assist in understanding the terms used in these Schedules.
Where relevant, certain capitalised terms which are used in a Schedule are more particularly defined in that Schedule.
Note:
A reference to a person includes a corporation and vice versa.
A reference to one gender includes all other genders.
A reference to the singular includes the plural and vice versa.
Unless the context otherwise requires:
Additional Charge means a charge which the Customer must pay to Loop for the supply of any goods or services which are outside of the scope of the Services. Such charge will be made at Loop’s then rates as detailed in the Time and Materials Schedule unless otherwise agreed in writing between the parties.
Agreement means and includes the terms and particulars detailed in this this document, its Schedules and any agreed variations thereto.
Commencement Date means the date specified in the Commercial Details for commencement of the Initial Term.
Commercial Details means the schedule which details the parties and other relevant contractual information.
Confidential Information means any confidential business and financial information of a party including, without limitation, information concerning the business operations and methods of a party or technical information acquired either directly or indirectly by the other party but excludes information which is or becomes publicly known through no wrongful act of the receiving party.
Customer means the party specified as such in the Commercial Details.
Execute means an intention to be contractually bound which is demonstrated by any form of evidence recognised at law, including but not limited to signing whether by physical, electronic or digital means.
Governing Law means the law of the state specified as such in the Commercial Details.
GST means the goods and services tax as defined in “A New Tax System (Goods and Services Tax) Act 1999”.
Initial Term means the first term of the Agreement, being the period specified as such in the Commercial Details.
Loop means Loop Secure Pty Ltd ABN 76 114 448 225.
Loss or Losses means any loss, damage (excluding consequential losses), liability, cost or expense including legal expenses on a solicitor and own client basis.
Manufacturer means a third party manufacturer or supplier of any relevant product..
Personnel means the employees, directors, officers, committee members, servants, agents, of a Party.
Purchase Order means an order issued by the Customer requesting Loop to supply any of the Services referred to in a relevant Schedule. The issue of such order will be subject to the terms of this document, notwithstanding any provision to the contrary in any such order.
Schedule means a Schedule to this Agreement. Such Schedules detail the relevant services or information in relation to services which are to be provided pursuant to this Agreement. Such Schedules form part of this Agreement.
Service Exclusions is a reference to the section within relevant Schedules which specifically details that certain work or things do not form part of the Services.
Service Pricing means the charges for the Services set out in the relevant Schedules or otherwise set out in an invoice issued by Loop and/or as detailed in any Variation Schedule.
Service Calendar means the hours during which the Services must be supplied, as specified in the relevant Schedule.
Services means and includes each of the goods and services to be supplied by Loop as further described in the relevant Schedules to this Agreement.
Site means, where applicable, at which the Managed Asset are located or where Services are to be performed or where the Loop Supplied Technology is to be delivered.
Term means the initial Term specified in the Commercial Details and any extension of it.
Variation Schedule means the Schedule which summarises any variation to the Services, Service Pricing or other terms of this Agreement.
Acceptance
This document including its Schedules constitutes the Agreement by which Loop will supply the Services referred to in the Schedules or the Commercial Details.
