1.1. Red Rock Consulting Pty Ltd (“UXC Red Rock”) will provide the Services requested by Customer as specified in a Statement of Work (SOW) under the terms and conditions of this Agreement. Each SOW, when executed, will form a separate contract between the parties. If there is any inconsistency between this Agreement, a SOW or a related Schedule, this Agreement shall take precedence.
1.2. This Agreement constitutes the entire agreement between the parties and supersedes all previous agreements or representations, written, or oral, with respect to the Services and Developments. It is expressly agreed that any terms and conditions of Customer’s purchase order shall be superseded by and be subject to the terms and conditions of this Agreement.
2. Term of Agreement
2.1. This Agreement will continue until either (a) it is terminated by either party in accordance with this Agreement, or (b) all SOWs have been terminated and no new SOWs have been entered into for 12 consecutive months. If this Agreement is terminated, all SOWs will continue and will be subject to the Terms and Conditions stated in this Agreement.
3. Payment Terms
3.1. All fees and charges exclude GST and are payable within 14 days of the date of invoice. For any on-site Services, Customer shall reimburse UXC Red Rock for all pre-agreed travel, accommodation, living and other out-of-pocket expenses incurred.
3.2. UXC Red Rock reserves the right to charge interest on the daily balance of overdue accounts at the same rate as the maximum overdraft rate fixed by the National Australia Bank plus 2.5% as well as to recover all costs relating to the collection of overdue accounts. In addition, UXC Red Rock may, at its discretion, suspend the provision of Services or invalidate Service Levels (if any) until all overdue accounts are fully paid.
4. Quotes and Fee Variations
4.1. Quotes are valid for 30 days. All orders are subject to acceptance by UXC Red Rock. On each anniversary of the Effective Date of a SOW, an incremental increase of 5% will be applied to the Fees and rates specified in the SOW. UXC Red Rock may revise its pricing to cater for changes in or new taxes or duties. Products and Services sourced from overseas are subject to foreign exchange rate changes.
5.1. Unless otherwise specified in a SOW, Products are accepted upon delivery and Services are accepted upon performance of the work which will be supported by detailed timesheets.
6. Customer Obligations
6.1. The Customer shall (a) provide resources, facilities and system access, conduct reviews, and provide approvals as reasonably required by UXC Red Rock to perform the Services; (b) be responsible for security of all data and networks; (c) ensure all data is adequately backed up; and (d) implement suitable antivirus protection measures.
7.1. UXC Red Rock shall not be liable for and time for performance shall be extended because of any delays or inability to perform caused by circumstances or events beyond the reasonable control of UXC Red Rock or its suppliers.
8.1. Any delay, failure or forbearance by either party to exercise (in whole or in part) any right, power, or remedy in connection with this Agreement shall not operate as a waiver of such right, power, or remedy. A waiver of any breach of any provision of this Agreement shall not be effective unless that waiver is in writing and is signed by the party against whom that waiver is claimed. A waiver of any breach shall not be, or be deemed to be, a waiver of any other or subsequent breach.
9. Rights to Developments
9.1. UXC Red Rock will retain any and all intellectual property rights in any software and documentation (“Developments”) which is created by UXC Red Rock during the provision of Services. Upon receipt of full payment for the related Services, UXC Red Rock grants to Customer a perpetual, royalty-free, non-exclusive, non-transferable to a third party or non-related entity, license to use, copy, modify and otherwise utilise the Developments on Customer’s equipment for the purpose of internal processing.
10. Third Party Products and Services
10.1. Third Party Products and Services are resold by UXC Red Rock as non-returnable and sold “as is” subject to the manufacturer’s specifications. All software is licensed and subject to the original licensor terms and conditions generally supplied with the software or available on request. Any intellectual property indemnity, support and warranty is as offered by the manufacturer.
10.2. Some Services provided by under this Agreement may be related to Customer’s license to use third party products such as Oracle software which Customer warrants has been validly licensed under arrangements separate to this Agreement. Customer agrees to be fully responsible for identifying and procuring any necessary product licenses relating to UXC Red Rock’s Services.
11. Export Law
11.1. Products, including technical information, software and services of overseas origin may be subject to export and re-export control laws and Customer agrees to comply with their use and re-export.
12. Red Rock Intellectual Property
12.1. Various tools used in the delivery of UXC Red Rock’s Services contain proprietary information of UXC Red Rock and are protected under a license agreement containing restrictions on their use and disclosure, and are also protected by copyright patent and other intellectual property law. Modification, transfer, reverse engineering or any other non-authorised use or disclosure of UXC Red Rock’s Intellectual Property is strictly prohibited. On expiration or termination of this Agreement, Customer will immediately cease using any UXC Red Rock Intellectual Property and Customer agrees to return any UXC Red Rock Intellectual Property to UXC Red Rock.
13. Limitation of Liability
13.1. Notwithstanding any other provisions in this Agreement or implied by law, UXC Red Rock’s cumulative liability during the term (and any renewals) for all actions, claims and defaults including negligence will be limited in aggregate as follows:
- 13.1.1. For injury to or death of natural persons or damage to or loss of tangible property is limited to its insurances;
- 13.1.2. For any other damage or loss, is limited to the lesser of either i) the amount of actual direct damage or loss, or (ii) the amount paid by you to UXC Red Rock in the last 12 month period in relation to actual Services and/or Products that gave rise to the claim.
13.2. In no event shall either party be liable for any indirect, incidental, special, economic or consequential damages, or loss of profits, revenue, data, or use, incurred by either party or any third party howsoever caused, regardless of whether the other party or any other person could foresee or was advised of the possibility or likelihood of such loss or damage.
14. Warranties and Disclaimers
14.1. UXC Red Rock warrants that the Services will be performed with due care and skill. Customer must report any deficiencies in the Services to UXC Red Rock in writing within 30 days of performance of the Services. If UXC Red Rock is in breach of a condition or warranty implied by the Competition and Consumer Act (or similar legislation), then UXC Red Rock’s liability, to the extent permitted by law, is limited at its option, to re-performing the services or paying the cost of having the services re-performed.
14.2. UXC Red Rock does not warrant that Products or Services are error free or will not fail in operation. Products and Services supplied by UXC Red Rock are not designed to be used in high risk and/or life support environments where errors or failures could lead to injury or death without adequate fail safe and redundancy systems.
14.3. ACL Consumer Notice: The following applies to a “consumer” as defined under the ACL – “Our goods come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure”.
15.1. The parties may provide to one another information that is either marked as or by its nature is confidential (“Confidential Information”). Confidential Information shall not include information which; (a) is or becomes a part of public domain through no act or omission of the other party; (b) was in the other party’s lawful possession prior to the disclosure and had not been obtained by the other party either directly or indirectly from the disclosing party; (c) is lawfully disclosed to the other party by a third party without restriction on disclosure; (d) is independently developed by the other party; or (e) is disclosed by operation of law. The parties agree to hold each other’s Confidential Information in confidence while the Services are being performed and for a period of 3 years thereafter.
16. Employment Restriction
16.1. To protect the goodwill and investments made by UXC Red Rock, during the term of this Agreement and for a period of 6 months from its expiration or termination, Customer agrees that it will not directly or indirectly, except with the expressed written consent of UXC Red Rock, employ or offer to contract with any person employed or contracted by or acting on behalf of UXC Red Rock in connection with the provision of Services in accordance with this Agreement. If in breach of this provision, Customer agrees to pay UXC Red Rock (a) for any employee, the equivalent of 6 month’s salary of that person as at the time of the employment, and/or (b) for any contractor, a flat fee of $50,000.
16.2. It is expressly agreed that (a) “employ” or “offer to contract with” in this clause includes both as a principal employer or through a third party acting as an agent, and (b) “Customer” in this clause includes Customer and all related entities.
17.1. Either party may terminate this Agreement:
- 17.1.1. For Cause immediately in writing if the other party breaches a material obligation of this Agreement and that breach is not remedied within 10 business days of receiving written notice requiring it to do so;
- 17.1.2. For Convenience by giving the other party 30 days written notice; or
- 17.1.3. Due to Insolvency immediately in writing if the other party enters or threatens to enter into bankruptcy, liquidation, administration or any other type of insolvency or if the other party ceases to conduct business to properly give effect to this Agreement.
17.2. Either party may terminate a SOW by giving 30 days prior written notice unless specified otherwise in a SOW. In the event that Customer cancels a SOW, the following will be due and payable by Customer:
- 17.2.1. The cost of all work completed up to and including the date of termination,
- 17.2.2. PLUS The cost of any Products (including software licenses) that are unable to be returned to the supplier,
- 17.2.3. PLUS A cancellation fee which will be calculated as follows:
- 22.214.171.124. For time-based Consulting/Project Services: the duration (days) x 8 hours x SOW Fee (hourly rate) x 35%; or
- 126.96.36.199. For fixed-price Project Services: the total SOW Fee x 35%; or
- 188.8.131.52. For Managed Services: the annualised SOW Fee x 35%.
18.1. No terms in a Customer invoice or purchase order amend or override this Agreement and shall be deemed to be null and void. Any amendments to these Terms and Conditions or a SOW must be in writing signed by both parties.
19.1. UXC Red Rock may wish to publicly announce Customer as a customer and use its name in marketing and promotional materials. Customer grants UXC Red Rock permission to use its name for such purposes. Customer retains the right to revoke such permission at any time by notifying UXC Red Rock in writing.
20.1. Customer may not assign its rights or obligations under this Agreement without the prior written consent of UXC Red Rock. Transition costs, if any, shall be payable by Customer in the event this Agreement is assigned or novated.
21. Governing Law
21.1. This Agreement shall be governed by the laws of and subject to the jurisdiction of the courts of New South Wales. If any provisions are held invalid, void, illegal or unenforceable, the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
22.1. Terms of this Agreement which by their nature survive expiration or termination include but are not limited to: Payment Terms, Quotes and Fee Variations, Rights to Developments, Third Party Products and Services, Export Law, UXC Red Rock Intellectual Property, Limitation of Liability, Warranties and Disclaimers, Non-Disclosure, Employment Restriction and Governing Law.
RR Int Ref: Ver 1.4 (May 2012)