Services Terms and Conditions

Background

A. Customer requires information technology-related services.
B. Aliva has agreed to accept Work Orders from Customer to provide the relevant Services and
Deliverables on the terms and conditions of this Agreement.

Operative provisions

1. Definitions and interpretation

1.1 Definitions

In this Agreement, unless the context requires otherwise:

Agreement means this Modular Master IT Services Agreement, including any Work Order, schedule, annexure, and exhibit to it;

Analytics Data has the meaning under clause 12.4;

Business Day means a day that is not a Saturday, Sunday, public holiday or bank holiday in [e.g. Brisbane, Queensland, Australia];

Change means any:
(a) changes to the scope of the Services or Deliverables;
(b) changes to the amount of time estimated to be necessary to provide the Services or
Deliverables;
(c) changes in Fees; and
(d) other amendments, variations and changes to the Agreement or a Work Order;

Change Proposal means a proposal in respect of a Change setting out:

(a)           full details of the activities required to implement the proposed Change including any specifications, special conditions and any amendments to this Agreement or a Work Order required as a result of the proposed Change;
(b)           a timetable for the implementation of the Change;
(c)           a statement of the estimated cost of implementing the Change; and
(d)           the impact, if any, of the Change on the Fees;

Claim means actions, suits, causes of action, proceedings, claims or demands;

Commencement Date means the date this Agreement is executed by both parties;

Confidential Information means the terms of this Agreement and each Work Order, and information of every kind and form (including written and oral) that is treated or designated by the Discloser as confidential and marked confidential  and which is disclosed by the Discloser or otherwise comes to the knowledge of the other party in connection with this Agreement. Information or material is not Confidential Information for the purposes of this Agreement if it:

(a)           is in the public domain prior to its disclosure by the Discloser;
(b)           enters the public domain other than as a result of an unauthorised disclosure by the Recipient, or by a third party who has obtained such information from a party;
(c)           is disclosed to the Recipient party by a third party  who is lawfully entitled to disclose such information or material to the Recipient party on a non-confidential basis; or
(d)           is rightfully known by the Recipient prior to the date of its disclosure by the Discloser; 

Customer Data means:

(a)           all Data provided by Customer to Aliva under this Agreement or any Work Order in relation to the Services; and
(b)           any Personal Information incorporated into any of the Data described in paragraph (a);

Customer Environment means telecommunications, networks, systems and any other facilities (including any connection, hardware, software, web services, third party content or software or equipment) used, or required, by or on behalf of Customer to interface with, or for accessing and making use of the Services;

Data means all data of any kind (including Personal Information) that Aliva is required to generate, collect, process, store or transmit under this Agreement or any Work Order;

Data Breach means:

(a)           in respect of any Customer Data that is not Personal Information, any part of the Customer Data becomes corrupted, not accessible, incorrectly modified or deleted, or otherwise the integrity or reliability of the Data is not maintained; or
(b)           in respect of any Customer Data that is Personal Information:
(i)            that the Personal Information is or may have been misused, interfered with, corrupted or subject to unauthorised access, modification or disclosure
(ii)           that there has been unauthorised access to the system, storage device or computer network in which such Personal Information is stored; or
(iii)          that the Personal Information, or the storage device or computer system on which such Personal Information is stored, is lost or misplaced;

Delay means an event or circumstance that delays or will likely delay Aliva from meeting a Time Requirement;

Deliverable means any materials, or item required to be completed, developed or supplied under this Agreement or a Work Order, including any hardware, plant, equipment and/or software licences to be supplied;

Developed IP means Intellectual Property Rights created or developed by or on behalf of Aliva to meet the  requirements under this Agreement or a Work Order, or otherwise in the course of providing the Services or Deliverables;

Discloser means the party that discloses Confidential Information;

Dispute has the meaning under clause 17.1;

End Date means the date that is 12 months from the Commencement Date;

Equipment means any equipment, hardware or tools forming part of the Services which are provided by Aliva to Customer;

Extension Period means 12 months;

Fee means the fees and other charges payable by Customer in connection with this Agreement as identified in a Work Order;

Force Majeure Event means any:

(a)           fire, flood, earthquake, cyclone, or act of God;
(b)           riot, civil disorder, rebellion or revolution;
(c)           war or terrorist act;
(d)           epidemic or pandemic (whether declared or undeclared) or other public health emergency; or
(e)           other similar cause beyond the reasonable control of the non-performing party;

GST means any tax, levy, charge or impost implemented under the GST Act;

GST Act means A New Tax System (Goods and Services Tax) Act 1999 (Cth) or an Act of the Parliament of the Commonwealth of Australia substantially in the form of, or which has a similar effect to, the GST Act;

Hardware means any hardware which Customer independently procures from Aliva under a Work Order;

Insolvency means the happening of any of the following events:

(a)           an order is made that a body corporate be wound up;
(b)           an order appointing a liquidator or provisional liquidator in respect of a body corporate is made;
(c)           except to reconstruct or amalgamate while solvent on terms consented to by the other party acting reasonably, a body corporate enters into, or resolves to enter into, a scheme of arrangement or composition with, or assignment for the benefit of, all or any class of its creditors, or it proposes a reorganisation, moratorium or other administration involving any of them;
(d)           a body corporate resolves to wind itself up, or otherwise dissolve itself, or gives notice of intention to do so, except to reconstruct or amalgamate while solvent on terms approved by the other party acting reasonably or is otherwise wound up or dissolved;
(e)           a body corporate is or states that it is insolvent;
(f)            as a result of the operation of applicable law, a body corporate is taken to have failed to comply with a statutory demand;
(g)           a body corporate is, or makes a statement from which it may be reasonably deduced by the other party that the body corporate is, the subject of an insolvency event under applicable law;
(h)           a body corporate takes any step to obtain protection or is granted protection from its creditors, under any applicable legislation or an administrator is appointed to a body corporate;
(i)            a resolution is passed to appoint an administrator or an administrator is appointed to a body corporate; or
(j)            anything analogous or having a substantially similar effect to any of the events specified above happens under the law of any applicable jurisdiction;

Introduction Fee has the meaning under clause Error! Reference source not found.;

Invoicing Terms means the terms set out in the Work Order;

IP Claim means any third party claim that the Services or Deliverables, or their use in accordance with this Agreement infringes or violates any third party’s Intellectual Property Rights;

Key Personnel means Aliva’s Personnel that are specified in a Work Order as ‘Key Personnel’ or who are otherwise responsible for the performance of key roles or tasks under this Agreement;

Liability means any costs, expenses (including legal costs on a full indemnity basis), losses, damages, charge, compensation, amounts paid on advice of legal advisers to compromise or settle a claim, taxes, outgoings or other payments;

Location means the location for the provision of the Services, as specified in the relevant Work Order;

Loss means Liabilities, losses, damages, costs and expenses arising out of a right under this Agreement or a cause of action in connection with this Agreement, including breach of contract, tort (including negligence) and any other common law, equitable or statutory cause of action, except to the extent limited or excluded under this Agreement;

Payment Terms means the terms set out in the Work Order;

Personnel means, in relation to a party, the officers, employees, agents and subcontractors of that party.  The Personnel of Customer does not include Aliva, and the Personnel of Aliva includes any subcontractors and their Personnel;

Personal Information has the meaning set out under the Privacy laws;

Pre-existing IP means Intellectual Property Rights subsisting in any material either party provides or makes available to the other party under or in connection with this Agreement or a Work Order, or which is created or developed independently from this Agreement or a Work Order, but excludes any Developed IP;

Privacy laws means the Privacy Act 1988 (Cth) and the Australian Privacy Principles;

Recipient means the party receiving Confidential Information from the Discloser;

Representative means the nominated Personnel from each of the parties specified in the Work Order;

Review Date means July 1 each year during the Term;

Services means the services that Aliva is required to perform under this Agreement from time to time pursuant to a Work Order, and except to the extent expressly excluded, includes all things, resources, services and tasks which are reasonably necessary for or incidental to provision of those services;

Services Schedule means the schedule setting out the specific terms and conditions applicable to the relevant Services, as set out in Schedule 2 or Schedule 3 (as applicable);

Software means any software forming part of the Services that is provided by Aliva to Customer;

Tax Invoice has the meaning set out in the GST Act;

Term means the term of this Agreement, as described in clause 2.1, including any Extension Period;

Time Requirement means any timeframes, due dates, milestones, and any other time requirements set out in the applicable Work Order;

Third Party Supplier means a person that supplies services or products to Customer from time to time;

Work Order means a document setting out the Services to be performed, the applicable commercial terms applicable to those Services, and the applicable Services Schedule; and

Work Order Term means the duration specified in the Work Order.

1.2          Interpretation

In this Agreement, unless the context requires otherwise:

(a)           clause and subclause headings are for reference purposes only;
(b)           the singular includes the plural and vice versa;
(c)           words denoting any gender include all genders;
(d)           a reference to a person includes any other entity recognised by law and vice versa;
(e)           where a word or phrase is defined, its other grammatical forms have a corresponding meaning;
(f)            any reference to a party to this Agreement includes its successors and permitted assigns;
(g)           any reference to any agreement or document includes that agreement or document as amended at any time;
(h)           the use of the word includes or including is not to be taken as limiting the meaning of the words preceding it;
(i)            the expression at any time includes reference to past, present and future time and performing any action from time to time;
(j)            an agreement, representation or warranty by two or more persons binds them jointly and severally and is for the benefit of them jointly and severally;
(k)           a reference to an item is a reference to an item in the schedule to this Agreement;
(l)            a reference to an exhibit, annexure, attachment or schedule is a reference to the corresponding exhibit, annexure, attachment or schedule in this Agreement;
(m)         a reference to a clause described, prefaced or qualified by the name, heading or caption of a clause, subclause, paragraph, schedule, item, annexure, exhibit or attachment in this Agreement means a cross reference to that clause, subclause, paragraph, schedule, item, annexure, exhibit or attachment;
(n)           when a thing is required to be done or money is required to be paid under this Agreement on a day which is not a Business Day, the thing must be done and the money paid on the immediately preceding Business Day; and
(o)           a reference to a statute includes all regulations and amendments to that statute and any statute passed in substitution for that statute or incorporating any of its provisions to the extent that they are incorporated.

1.3          Order of precedence

(a)           This Agreement consists of the following parts:
(i)            the Work Order(s);
(ii)           the applicable Services Schedule(s);
(iii)          the terms of this Agreement; and
(iv)          any schedules, annexures or attachments to the Work Order(s).
(b)           In the event of any inconsistency between the parts of this Agreement, the part listed earlier in clause 1.3(a) above prevails to the extent of that inconsistency.

2.            Term

2.1          Term

This Agreement commences on the Commencement Date and continues until the End Date, unless terminated earlier in accordance with clause 18 or 19.

2.2          Extension Periods

The Term will automatically extend for each Extension Period unless either party gives the other party at least 90 days’ written notice prior to the end of the then-current Term of its intention not  to extend the Term the Extension Period, in which case this Agreement will expire at the end of the then-current Term.

3.            Work Order

3.1          General

Customer may request, and Aliva may agree, to provide Services and Deliverables by executing a Work Order in accordance with this clause 3.

3.2          Development of Work Order

(a)           Customer may from time to time notify Aliva of Customer’s requirements in respect of the required Services and Deliverables, and request Aliva to submit a draft Work Order for the supply of those Services and Deliverables.
(b)           Customer may by notice to Aliva:
(i)            reject the draft Work Order;
(ii)           meet and negotiate in good faith with Aliva the content of the draft Work Order; or
(iii)          accept the draft Work Order.

3.3          Execution of Work Order

(a)           If Customer accepts a draft Work Order, the parties will execute that draft Work Order.
(b)           Each Work Order executed by the parties will form part of this Agreement.
(c)           All Services or Deliverables under this Agreement must be provided pursuant to an executed Work Order.  Aliva will not be obliged to provide any Services or Deliverables to Customer without an executed Work Order.

4.            Change Control

4.1          Proposing a Change

Either party may propose a Change to this Agreement or to any Work Order by submitting a notice to the other party describing the proposed Change in enough detail to enable initial consideration of the impact of that Change.

4.2          Agreeing a Change

(a)           Within 14 days of the date of the notice under clause 4.1 (or such other period as the parties may agree), Aliva must submit a Change Proposal to Customer.
(b)           If Customer wishes to discuss or negotiate the Change Proposal, then each party’s Representatives must meet to discuss the Change Proposal (with both parties to act reasonably and in good faith);
(c)           If Customer:
(i)            rejects the Change Proposal;
(ii)           within 30 days (or such longer period as the parties may agree) of notifying Aliva of its wish to discuss or negotiate the Change Proposal, is unable to agree on a Change Proposal with Aliva; or
(iii)          does not respond within the timeframe set out in the Change Proposal, then the Change Proposal will have no effect and each party must continue to perform the Agreement and the Work Order in accordance with its unvaried terms.
(d)           Nothing in this Agreement requires Aliva to agree to a Change in respect of any Services, including the replacement of the Services or the addition of new Services.  Aliva is not required to give reasons for declining a Change.

5.            Performance standards and other obligations

5.1          Quality and standards

Aliva must, and ensure that each of its Personnel and subcontractors will:

(a)           perform all of its obligations under this Agreement promptly, with the skill, due care and prudence reasonably expected of skilled and experienced suppliers; and
(b)           use all reasonable endeavours to ensure that its performance of Services and Deliverables meets any specifications set out in the Work Order in all material respects.

5.2          Compliance with laws

Aliva must:

(a)           ensure that all Services and Deliverables supplied under this Agreement comply with all applicable laws; and
(b)           ensure that it has and enforces occupational health and safety policies and management systems, and safe work practices and procedures as required by relevant laws.

6.            Personnel and Subcontracting

6.1          Key Personnel

(a)           In respect of each role, function or activity that is assigned to a Key Personnel, Aliva will use all reasonable endeavours to ensure that that role, function or activity is carried out by that Key Personnel.
(b)           If any of the Key Personnel becomes or will become unavailable, Aliva will replace such persons with other Personnel with equivalent skills, qualifications and experience.

6.2          Subcontracting

(a)           Aliva may subcontract the performance of all or any part of its obligations under this Agreement.
(b)           Aliva acknowledges and agrees that it will be liable for the subcontractor’s acts and omissions in relation to this Agreement, and such appointment does not relieve Aliva from any of its obligations under this Agreement.

7.            Customer’s Obligations

7.1          General

Customer will at its own cost:

(a)           promptly issue all consents, approvals, or acceptances necessary for Aliva to  access  the Customer Environment under this Agreement where required;
(b)           obtain and maintain all authorisations, licences, approvals, permits, and other certifications necessary to fulfil its obligations under this Agreement;(c)           obtain, maintain and operate the Customer Environment for the duration of the Term;
(d)           provide Aliva and its Personnel with access to the Customer Environment for the purpose of performing its obligations under this Agreement or as otherwise agreed by the parties; and
(e)           ensure that the Customer Environment complies with the specifications set out in the applicable Work Order and that the Customer implements any Recommendations from Aliva in relation to the Customer Environment.

7.2          Security

(a)           Customer must:
(i)            maintain and operate an appropriate level of security for its Customer Environment;
(ii)           ensure there is no unauthorised access to the Services;
(iii)          not cause harm or damage to the Services;
(iv)          not use the Services in any manner that may breach a third party’s rights, including infringing a third party’s Intellectual Property Rights; and
(v)           notify Aliva immediately of any unauthorised access to the Services, including any loss or misuse of Confidential Information.
(b)           Customer must take appropriate data security measures in relation to the Customer Data within its Customer Environment, having regard to the nature of the Customer Data, including:
(i)            using appropriate firewall and encryption technologies;
(ii)           applying latest security patches and updates to the Customer Environment;
(iii)          disabling any unnecessary ports in the Customer Environment; and
(iv)          conducting regular security audits.

7.3          Customer dependencies

Customer agrees and undertakes to:

(a)           do all things necessary to enable Aliva to perform its obligations under this Agreement including performing any works, providing any equipment or connecting any services as reasonably required by Aliva from time to time;
(b)           provide Aliva and its Personnel with access to the Customer’s premises, the Customer Environment, and the Customer’s Personnel as and when reasonably requested by Aliva;
(c)           provide Aliva with all information and documentation as reasonably requested by, or as otherwise necessary for Aliva;
(d)           co-operate with Aliva’s reasonable investigations of outages, security problems and any suspected breach of this Agreement; and
(e)           implement and incorporate any recommended changes in respect of the Customer Environment which Aliva reasonably requires to ensure the effective and timely provision of the Services.

7.4          Compliance with laws

Customer will:

(a)           not commit, cause or allow any breach (or do anything which might put Aliva) of any law, regulation, government direction or industry standard or code using the Services;
(b)           comply with all laws applicable to the Customer, including any data retention laws;
(c)           not use or attempt to use the Services or Deliverables for any activity which breaches any law, order, regulation or industry code of practice; and
(d)           not distribute, store or publish any content or material that is restricted, illegal or otherwise unlawful under any applicable law, or which is likely to be offensive or obscene to a reasonable person.

8.            Time Requirements

8.1          Time Requirements

Aliva will use commercially reasonable endeavours to comply with the Time Requirements.

8.2          Delays

If there is any act or omission by Customer or its Personnel or a failure or delay by Customer or its Personnel to comply with its obligations under this Agreement that results in a Delay in Aliva providing any Services in accordance with a Time Requirement:

(a)           Aliva will not be liable for that Delay; and
(b)           Aliva will be entitled to:
(i)            charge the Customer for any additional time spent at Aliva’s then current time and materials rates and for all costs and expenses incurred as a result of the Delay;  and
(ii)           a reasonable extension of time to a Time Requirement proportionate to the period of the Delay.

9.            Fees

9.1          Fees

(a)           Aliva will provide the Services in return for the Customer complying with this Agreement and paying the Fees in accordance with this Agreement.
(b)           Fees payable to Aliva by the Customer may be varied on each Review Date.  The variation shall be calculated in accordance with Consumer Price Index, based on the increase in the Australian Bureau of Statistics’ “All Groups Consumer Price Index Weighted Average of Eight Capital Cities” index.  The variation will be effective from the Review Date to which it applies, and Aliva will provide confirmation in writing.
(c)           During the Term and in addition to its rights under clause 9.1(b), Aliva may increase the Fees on written notice to the Customer as follows:
(i)            following any increase in the costs of providing the Services as result of any change or increase in costs passed on by any Third Party Suppliers.  Any increase in Fees under this clause must be done on a cost pass through basis and must not exceed the increase applied by the Third Party Suppliers.  Where able to do so, on request, Aliva will provide the Customer with reasonable written evidence verifying the Third Party Supplier’s increase; and
(ii)           following any material increase in the costs of providing the Services as a result of any material change or increase in the costs of labour, insurance or such other internal cost to Aliva in addition to any significant change to economic conditions.  Any increase in Fees under this clause must be done on a cost pass through basis where possible having regard to the actual increase in the costs of providing the Services.

9.2          Invoicing and Payment

(a)           Aliva must submit a Tax Invoice for all Fees in accordance with the Invoicing Terms.
(b)           Subject to clause 9.2(a), Customer will pay each undisputed, correctly rendered Tax Invoice within thirty (30) Business Days from the date the invoice is received by Customer.

9.3          Disputed Tax Invoices

If Customer reasonably disputes any item on any Tax Invoice in whole or in part, Customer will be required to pay the undisputed portion of the Tax Invoice.  Customer will promptly notify Aliva of its reasons for disputing certain items of the Tax Invoice.  Customer and Aliva will use all reasonable endeavours to settle the dispute at their earliest possible convenience in accordance with clause 17.  If the dispute is resolved and the parties agree, or if it is determined by a court of law, that any portion of the dispute amount is payable by Customer, then Customer will pay that portion to Aliva within thirty (30) Business Days of resolution of the dispute.

9.4          Overdue amounts

(a)           If any amount payable to Aliva under this Agreement has not been paid by Customer by the due date for payment, Aliva may:
(i)            charge interest on the amount outstanding at the rate of 5% above the overdraft index rate charged by the National Australia Bank;
(ii)           suspend performance of this Agreement; or
(iii)          terminate all or any Work Orders.
(b)           Customer remains liable for any and all payments due in relation to the Services during any period of suspension.

10.         Confidential Information

10.1       Obligation to maintain confidentiality

The Recipient must:

(a)           treat the Confidential Information as secret and confidential;
(b)           maintain proper and secure custody of the Confidential Information;
(c)           not use Confidential Information for any purpose other than the exercise of its rights or the performance of its obligations pursuant to this Agreement, without the prior written consent of the Discloser; and
(d)           only disclose the Confidential Information to its Personnel and advisers who have been made aware of the terms on which that Confidential Information is to be maintained and who have entered into legally binding confidentiality obligations that extend to that Confidential Information.

10.2       Acknowledgements

The Recipient:

(a)           acknowledges that the Confidential Information remains the property of the Discloser at all times and except as expressly set out in this Agreement, no proprietary or other interest in the Confidential Information is conveyed to the Recipient or any of its Personnel;
(b)           acknowledges that disclosure of any Confidential Information in breach of this clause 10 may cause irreparable harm to Discloser for which damages alone may not be a sufficient remedy; and
(c)           consents to the grant of injunctive relief to restrain any breach of, or specific performance to compel the Recipient to perform its obligations under this clause 10, as a remedy for any breach or threatened breach of this clause 10 and in addition to any other remedies available to the Discloser.

10.3       Compelled disclosure

Each party may disclose the other party’s Confidential Information if required by law.  However, if possible, it must inform the other party first and use reasonable endeavours to limit the terms of that disclosure as reasonably requested.

10.4       Publicity

Aliva may publicly announce that it is or has undertaken work for Customer, including on its website and in its marketing materials, unless Customer gives Aliva reasonable notice in writing.

11.         Intellectual Property Rights

11.1       Pre-existing IP

(a)           Each party (or its licensors) will retain ownership of its respective Pre-existing IP.
(b)           Each party grants to the other party a non-exclusive, royalty free licence to use, reproduce, modify and adapt its Pre-existing IP only to the extent necessary for the purpose of:
(i)            performing its obligations or exercising its rights under this Agreement and Work Order; and
(ii)           in the case of Customer, receiving the full benefit of Services (including through use of the Deliverables) and exercising its rights in the Developed IP.

11.2       Developed IP

(a)           Unless otherwise specified in a Work Order, ownership of all Developed IP vests in Aliva immediately on creation.
(b)           To the extent that the right, title and interest in the Developed IP does not automatically vest in Aliva on creation, Customer assigns and agrees to assign all right, title and interest in and to the Developed IP to Aliva.
(c)           Aliva grants to Customer a licence to use, reproduce, modify and adapt the Developed IP on the same terms as the rights granted under clause 11.1(b).

12.         Customer Data

12.1       Provision of Customer Data

If and to the extent that Customer Data is provided by the Customer to Aliva for the provision of the Services, the Customer will be solely responsible for the content, accuracy and completeness of all Customer Data.  Subject to the terms of this Agreement, the Customer:

(a)           must ensure that the Customer Data is fully compatible with the Services;
(b)           will, subject to any agreement between the parties, be solely responsible for the creation, posting, updating and maintenance of the Customer Data; and
(c)           will be solely responsible for the accuracy and appropriateness of all the Customer Data created by the Customer using the Services.

12.2       Access to and use of Customer Data

Aliva:

(a)           may access and use the Customer Data at any time for the purposes of this Agreement (including for reporting purposes);
(b)           reserves the right to remove any Customer Data that it reasonably considers is not compliant with or is otherwise incompatible with the Services;
(c)           is not obliged to review or monitor Customer Data used by the Customer in conjunction with the Services; and
(d)           at the Customer’s cost, may assist the Customer in resolving any compliance or compatibility issues between its Customer Data and the Services.

12.3       Security

Without limiting the Customer’s obligations under clause 12.1, Aliva will take commercially reasonable steps within its control to:

(a)           protect Customer Data (including Personal Information) to which Aliva has access in connection with this Agreement against unauthorised access, use, modification or disclosure; and
(b)           ensure the security of Customer Data (including Personal Information) to which Aliva has access in connection with this Agreement by maintaining security systems and procedures that comply with established industry practice.

12.4       Analytics

Notwithstanding anything to the contrary in this Agreement, Aliva may monitor, analyse and compile information based on and/or related to Customer’s use of the Services in an aggregated, de-identified format (Analytics Data).  Customer acknowledges that Aliva will own all Analytics Data on creation.

13.         Privacy

13.1       Compliance with Privacy laws

In performing its obligations under this Agreement, each party will comply with all Privacy laws in respect of any Personal Information collected, accessed, used, disclosed and otherwise handled by that party under or in connection with this Agreement.

13.2       Specific requirements

(a)           Without limiting clause 13.1, Customer will:
(i)            notify its customers, clients or other individuals to whom Personal Information it collects relates of any matter prescribed by any Privacy laws in relation to the collection, use, disclosure, handling and storage of their Personal Information, including the transfer and disclosure of and use such Personal Information by Aliva in accordance with this Agreement;
(ii)           ensure that any Personal Information transferred or disclosed to Aliva is collected fairly and reasonably, and is complete, accurate and up to date;
(iii)          notify Aliva immediately upon becoming aware of any breach of any Privacy law in relation to any Personal Information transferred or disclosed to Aliva under this Agreement;
(iv)          only disclose Personal Information in its control to Aliva if:
(A)          Customer is authorised by applicable Privacy laws, including any privacy policy, privacy code or privacy collection notice of Customer, to collect, use, disclose, handle or store the Personal Information in the manner required by this Agreement so that Aliva may lawfully collect, use, disclose, handle or store the Personal Information in order to comply with its obligations or exercise its rights under this Agreement; and
(B)          Customer has informed and has obtained the consent of the individual to whom the Personal Information relates that in order to provide goods or services to them it might be necessary for Customer to disclose their Personal Information to a third party, including to a third party located outside of Australia
(b)           Customer acknowledges and agrees that Aliva is under no obligation to:
(i)            withhold any Personal Information or related data, documentation or other records from any government agency with apparent authority to seek delivery or access to such Personal Information or data, documentation or other records; or
(ii)           refuse to provide any such government agency such Personal Information or data, documentation or other records.
(c)           Aliva will provide:
(i)            reasonable assistance to Customer, at Customer’s cost:
(A)          to resolve any complaint alleging a breach of Privacy laws;
(B)          to assist with the exercise of a person’s individual rights under the Privacy laws; or
(C)          to comply with the obligations under Privacy laws; and
(ii)           all necessary information and reasonable cooperation, at Customer’s cost, to assist Customer to comply with its data breach notification obligations under the applicable Privacy laws.

13.3       Data Breaches

At Customer’s cost Aliva will provide:

(a)           reasonable assistance to the Customer:
(i)            to resolve a complaint alleging a breach of Privacy laws; or
(ii)           to comply with Customer’s obligations under Privacy laws; and
(b)           provide all necessary information and reasonable cooperation to assist Customer to comply with its reporting and notification obligations under the applicable Privacy laws.

14.         PPSA

14.1       Application

(a)           Customer acknowledges that Aliva’s interest under this Agreement is a Security Interest for the purposes of the PPSA and:
(i)            that Security Interest relates to the Equipment and all proceeds of any kind; and
(ii)           this Agreement is a security agreement for the purposes of the PPSA.
(b)           Customer consents to Aliva effecting a registration on the PPSA (in any manner Aliva considers appropriate) in relation to any Security Interest arising under or in connection with this Agreement.

14.2       Registration

(a)           If required by Aliva, Customer must pay all costs associated with the registration, maintenance and withdrawal of any Security Interest on the PPSR which secures Customer’s obligations under any agreement with Aliva.
(b)           Customer waives its right to receive any notice under the PPSA (including notice of a verification statement) unless the notice is required by the PPSA and cannot be excluded.
(c)           Customer must do all things (including signing any document) and provide all information necessary to enable Aliva to perfect and maintain the perfection of any and each Security Interest granted to Aliva by Customer.
(d)           For the purposes of this clause 14, Customer irrevocably appoints Aliva to be its attorney with power to do all things necessary or expedient including entering into any documents deemed necessary by it to give effect to Customer’s obligations under this Agreement.
(e)           If Chapter 4 of the PPSA applies to the enforcement of a Security Interest arising under or in connection with this Agreement, Customer agrees the following provisions of the PPSA will not apply to the enforcement of that Security Interest:
(i)            section 95 (Secured party must give notice of removal of accession), to the extent that it requires Aliva to give Customer a notice;
(ii)           section 96 (When a person with an interest in the whole may retain accession);
(iii)          subsection 121(4) (Enforcement of security interests in liquid assets – notice to higher priority parties and grantor);
(iv)          section 125 (Obligation to dispose of or retain collateral);
(v)           section 130 (Notice of disposal of collateral), to the extent that it requires Aliva to give Customer a notice;
(vi)          paragraph 132(3)(d) (Secured party to give statement of account – statement of account following disposal);
(vii)         subsection 132(4) (Secured party to give statement of account – statement of account if no disposal);
(viii)        section 142 (Entitled persons may redeem collateral); and
(ix)          section 143 (Entitled persons may reinstate security agreement).
(f)            Where a person is a controller in relation to the Equipment, the parties agree that Part 4.3 of the PPSA will not apply to the enforcement of any Security Interest in the Equipment by that controller.
(g)           Notices or documents required or permitted to be given to Customer for the purposes of the PPSA must be given in accordance with the PPSA.

15.         Warranties

15.1       Mutual warranties

Each party represents and warrants to the other party that:

(a)           it has the power and authority to enter into and perform its obligations under this Agreement and that the execution of this Agreement by it has been duly and validly authorised by all necessary corporate action;
(b)           its obligations under this Agreement are valid and binding and enforceable against it in accordance with their terms; and
(c)           it does not rely upon any warranty, statement or representation made or given by or on behalf of any party.

15.2       Aliva’s warranties

Aliva represents and warrants to Customer that:

(a)           the Services and Deliverables will:
(i)            comply, in all material respects, with the requirements set out in this Agreement and the applicable Work Order; and
(ii)           be performed a timely and professional manner by suitably qualified Personnel;
(b)           it has the right to grant the licences set out in this Agreement; and;
(c)           it will comply with all laws applicable to Aliva.

15.3       Non-excludable rights

(a)           Aliva’s goods and services come with guarantees that cannot be excluded under the Australian Consumer law.
(b)           For major failures with the service, Customer is entitled (at its option):
(i)            to cancel its service contract with Aliva; and
(ii)           to a refund for the unused portion, or to compensation for its reduced value.
(c)           If a failure with the goods or a service does not amount to a major failure, Customer is entitled to have the failure rectified in a reasonable time.  If this is not done, Customer is entitled to a refund for the goods and to cancel the contract for the service and obtain a refund of any unused portion.
(d)           To the extent permitted by law and subject to this clause 15.3, Aliva excludes all conditions, warranties and terms not expressly set out in this Agreement. Where applicable law provides any consumer guarantee, condition or warranty which cannot be excluded, Aliva’s liability for any breach of such consumer guarantee, condition or warranty will be limited to the extent permitted by applicable law to, at its option to the provision of the entitlements set out in this clause 15.3.

16.         Indemnity and Liability

16.1       Indemnity by Aliva

(a)           Subject to clause 16.1(b), Aliva indemnifies Customer and will keep Customer indemnified from and against any award of damages against it in favour of the claimant under an IP Claim.
(b)           The indemnity in clause 16.1(a) is conditional on Customer:
(i)            using the Services in accordance with and within the scope of this Agreement;
(ii)           promptly notifying Aliva in writing after receiving notice of any such IP Claim;
(iii)          not making any admissions to the third party claimant or its representatives in relation to the IP Claim;
(iv)          granting Aliva the sole control of the defence of any action regarding the IP Claim and all negotiations for its settlement; and
(v)           providing reasonable assistance to Aliva in Aliva’s defence or settlement of the IP Claim.
(c)           If in Aliva’s reasonable judgment any IP Claim, or threat of an IP Claim, is likely to materially interfere with Customer’s use of the Services, Aliva will consult with the Customer, and Aliva will have the option, in its sole discretion, to:
(i)            substitute functionally equivalent non-infringing Services;
(ii)           modify the Services to make them non-infringing; or
(iii)          obtain for Customer at Aliva’s expense the right to continue using the infringing Services, provided that if Aliva cannot achieve any of the remedies in the preceding paragraphs on a reasonable commercial basis, it may by written notice, require Customer to cease using the Services (or component of the Services), and refund a pro-rata portion of the Fees for such period of time in which Customer is unable to use the Services (or the relevant component of the Services).
(d)           Aliva will have no indemnity obligation for any IP Claim resulting or alleged to result from:
(i)            any combination, operation, or use of any Services with any programs or facilities not supplied by Aliva or not specified in writing by Aliva;
(ii)           use of the Services other than in accordance with this Agreement or Aliva’s written instructions;
(iii)          inclusion or use of Customer Data;
(iv)          any modification of the Services by a party other than Aliva if such infringement would have been avoided in the absence of such modifications;
(v)           failure by Customer to adopt an updated version of any software where the update would have avoided or reduced the infringement.
(e)           To the extent permitted at law, this clause 16.1 states Aliva’s entire liability and Customer’s sole and exclusive remedy for all IP Claims.

16.2       Indemnity by the Customer

The Customer indemnifies Aliva, its Personnel, and its affiliates against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising from:

(a)           the Customer’s use of the Services contrary to this Agreement;
(b)           the Customer’s breach of any third party right, including without limitation any Intellectual Property Rights or privacy rights, or any law; or
(c)           any claim arising as a consequence of the Customer Data including any content of the Customer Data or the circumstances of the collection of the Customer Data.

16.3       Proportionate Liability

To the extent permissible by law, a party’s Liability under the Agreement (including under an indemnity) is reduced proportionately to the extent that such Liability is caused or contributed to by the other party or its Personnel.

16.4       Limitation of liability

(a)           To the maximum extent permitted by law, the aggregate liability of Aliva (whether under statute, in contract or in tort, including for negligence, or otherwise) for Liability suffered or incurred by Customer  in connection with this Agreement is limited to the amount equal to the lesser of:
(i)            the Fees paid under this Agreement in the 12 months prior to the incident giving rise to the Liability; or
(ii)           $[insert amount].
(b)           To the extent permitted by law, Aliva is not responsible for any loss or damage incurred by Customer or any third party and Customer releases Aliva and its Personnel from all Claims in connection with:
(i)            a use of the Services in combination with materials or services not supplied to Customer by Aliva;
(ii)           any failure by the Customer to properly implement a Recommendation;
(iii)          a Data Breach, irrespective of whether caused or contributed to by Aliva or its Personnel, including but not limited to, any statutory fines or penalties;
(iv)          Customer’s failure to comply with its obligations under this Agreement (including use of Software, Equipment or Hardware other than as reasonably contemplated, and relocation of Software or Equipment); faults, malfunction or defect in any third party products or services;
(v)           modifications of the Services or Deliverables other than as authorised by Aliva; or
(vi)          telecommunications or power failure or fault or defective network or internet connection affecting Customer, or affecting Aliva provided that Aliva is unable to reasonably mitigate through its business continuity and disaster plan.
(c)           Unless otherwise specified in a Work Order, Aliva’s only obligation arising from a Data Breach is to attempt restoration of Customer Data to the last available backup.

16.5       Indirect Loss

To the extent permitted by law, neither party is liable whether in tort (including for negligence), contract, breach of statutory duty, misrepresentation, restitution or otherwise for indirect loss of profits, loss of business, depletion of goodwill, loss or corruption of data or information, or pure economic loss, or for any other special, indirect or consequential loss, costs, damages, charges or expenses however arising under this Agreement.

16.6       Duty to Mitigate

Each party must use all reasonable endeavours to mitigate its liability.

17.         Dispute Resolution

17.1       Notice

A party claiming that a dispute has arisen out of or in connection with this Agreement (Dispute) must as soon as reasonably practicable give notice to the other party specifying the nature of the Dispute and the parties will submit themselves to the dispute resolution procedure set out in this clause 17.

17.2       Initial process

If a Dispute arises between the parties in relation to this Agreement, then:

(a)           the parties will attempt to resolve the Dispute informally between themselves;
(b)           if the parties are unable to resolve the dispute informally, a party may refer the matter in writing to the Representative of each party for resolution;
(c)           the Representative of each party, with full authority to resolve the Dispute, must meet and use reasonable endeavours to resolve the Dispute within seven days after the notice of the Dispute is given;
(d)           where a Dispute is not resolved by the Representatives it must be referred to appropriately senior Customer and Aliva Representatives, who will meet to use their best endeavours to resolve the Dispute within seven days of the meeting between the Representatives; and
(e)           the parties will bear their own costs of dealing with any Dispute.

17.3       Formal steps

(a)           If the Dispute is not resolved under clause 17.2 within ten (10 Business Days after the Dispute is referred to the Chief Executive Officer or equivalent officer of Customer and Aliva (or their respective delegates), then the parties must try to resolve the Dispute by mediation:
(i)            to be held in Brisbane, Australia;
(ii)           administered by the Australian Disputes Centre; and
(iii)          in accordance with the Australian Disputes Centre Guidelines for Commercial Mediation.  These Guidelines set out the procedures to be adopted, the process of selection of the mediator and the costs involved.
(b)           If the Dispute is not settled within thirty (30) Business Days after the end of mediation, then either party may initiate legal proceedings.

17.4       Dispute resolved by negotiation

If a Dispute is resolved under clause 17.2 or 17.3, each party must do anything (including execute any document) reasonably required by the other party to give effect to the agreed resolution of the Dispute.

17.5       Continuing compliance

Notwithstanding this clause 17, the parties will, until resolution of the relevant Dispute, continue to comply with their obligations under this Agreement save that Customer is not required to pay any disputed amounts.

18.         Termination

18.1       Termination for convenience

Either party may terminate this Agreement or a Work Order for convenience by giving the other party no less than ninety (90) Business Days’ notice in writing.

18.2       Termination for cause

(a)           This Agreement may be terminated at any time during the Term immediately by a party if the other party:
(i)            is in material breach of any of its obligations under this Agreement and it has not rectified the breach within twenty (20) Business Days from receiving written notice requiring it to do so;
(ii)           is no longer able to perform its obligations under this Agreement due to a change in law which prevents that party from performing its obligations under this Agreement; or
(iii)          suffers an Insolvency event.
(b)           Without limiting paragraph (a), Aliva may terminate this Agreement or Work Order, or suspend the Services, if Customer fails to make payment and has not rectified the non-payment within seven (7) Business Days from receiving written notice to do so.

18.3       Consequences of expiry or termination

(a)           Upon expiry or termination of this Agreement or a Work Order for any reason:
(i)            where Customer terminates this Agreement or a Work Order under clause 18.1, Customer must pay for any unavoidable costs or expenses (including any pre-paid subscriptions, Hardware and licences) incurred by Aliva as a result of the early termination;
(ii)           all amounts due and payable to Aliva, whether or not invoiced, including any Fees for Services and Deliverables provided or performed as at the date of termination become a debt due and payable on the date of termination;
(iii)          Customer must return all Equipment to Aliva within thirty (30) Business Days of expiry or termination;
(iv)          Aliva will, upon request, provide Customer with reasonable assistance to transfer the obligations of Aliva to Customer or a replacement Third Party Supplier in accordance with clause 20; and
(v)           each party must promptly return or destroy (and erase all electronic copies of) the other party’s Confidential Information, as directed by the other party.

18.4       Non-solicitation

Each party agrees not to directly or indirectly solicit, recruit or make an offer of employment to the Personnel of the other party during the Term without the prior written consent of the other party and for a period of:

12 months;

six months; or

three months,

following expiration or termination of the Agreement.

18.5       Survival of rights

Termination or expiry of this Agreement will not affect the rights of the parties which have accrued before the termination or expiry date.

18.6       Expiry or termination of Work Orders

The termination or expiry of a Work Order will not affect the continuation of any other Work Order or this Agreement, unless the other Work Order or this Agreement is terminated simultaneously or expires.

18.7       Survival

Clauses 1, 10, 12, 13, 14, Error! Reference source not found., 17, 18,19, 20, 21 and any other provisions which by their nature are intended to survive termination or expiry, will survive termination or expiry of this Agreement for any reason.

19.         Force Majeure

19.1       General

(a)           Each party releases the other from any liability for any failure to perform its obligations under this Agreement (other than an obligation to pay money) which is due to the occurrence of any Force Majeure Event.
(b)           Neither party is liable for any delay or failure to perform its obligations under this agreement if the delay is due to Force Majeure.

19.2       Procedure for Force Majeure Events

(a)           If a delay or failure of a party to perform its obligations is caused or anticipated due to a Force Majeure Event, the performance of that party’s obligations will be suspended for the duration of that event.
(b)           If a party is prevented from or substantially impaired in performing its obligations due to a Force Majeure Event for a period exceeding sixty (60) Business Days, either party may immediately terminate this Agreement on written notice to the other party.

20.         Disengagement and transition out

20.1       Transition-out

At the reasonable request of the Customer, Aliva will provide to Customer with assistance and Services reasonably requested for a period of time after the expiry or termination of this Agreement or a Work Order (provided that the period does not exceed six (6) months) as set out in a Work Order, to facilitate the orderly transfer of responsibility for the supply of Services and Deliverables to a replacement Third Party Supplier appointed by Customer.

20.2       Payment of Fees

Aliva will charge, and Customer will pay for the assistance and Services on a time and materials basis at the rates set out in the relevant Work Order. Customer acknowledges and agrees that Customer will continue to pay for any Services being provided by or on behalf of Aliva to Customer during transition out in accordance with this Agreement.

21.         General provisions

21.1       Costs

Each party must pay its own costs in relation to:

(a)           the negotiation, preparation, execution, performance, amendment or registration of, or any consent given or made; and
(b)           that party performing any action in complying with any liability arising,

under this Agreement, or any agreement or document executed or effected under this Agreement, unless this Agreement provides otherwise.

21.2       GST

(a)           If GST is payable by a supplier (or by the representative member for a GST group of which the supplier is a member) on any supply made under or in relation to this Agreement, the recipient must pay to the supplier an amount (GST Amount) equal to the GST payable on the supply. The GST Amount is payable by the recipient in addition to and at the same time as the net consideration for the supply.
(b)           If a party is required to make any payment or reimbursement, that payment or reimbursement must be reduced by the amount of any input tax credits or reduced input tax credits to which the other party (or the representative member for a GST group of which it is a member) is entitled for any acquisition relating to that payment or reimbursement.
(c)           This clause is subject to any other specific agreement regarding the payment of GST on supplies.

21.3       Assignment

Customer may not assign or transfer its rights and obligations under this Agreement without the prior written consent of Aliva. Aliva may assign, transfer or novate its rights and obligations under this Agreement without the prior written consent of Customer.

21.4       Notices

(a)           Any notice may be served by delivery in person, by post or email to the address or number of the recipient specified in this clause or most recently notified by the recipient to the sender.
(b)           Any notice to or by a party under this Agreement must be in writing and signed by either:
(i)            the sender or, if a corporate party, an authorised officer of the sender; or
(ii)           the party’s solicitor.
(c)           Any notice is effective for the purposes of this Agreement on delivery to the recipient before 4.00 pm local time on a day in the place in or to which the written notice is delivered or sent or otherwise at 9.00 am on the next day following delivery or receipt.

21.5       Governing law and jurisdiction

(a)           This Agreement is governed by and construed under Queensland, Australia law.
(b)           Any legal action in relation to this Agreement against any party or its property may be brought in any court of competent jurisdiction in Queensland, Australia.
(c)           By execution of this Agreement, each party irrevocably, generally and unconditionally submits to the non‑exclusive jurisdiction of any court specified in this clause in relation to both itself and its property.

21.6       Amendments

Aliva may amend this Agreement at any time by providing at least 30 days prior written notice.  If Customer does not agree to such amendment, Customer may terminate this Agreement on 30 days’ notice in writing.  If Customer agrees or does not object to the amendment within the 30 day notice period, Customer will accept or be deemed to accept, as the case may be, the amendment.

21.7       Pre-contractual negotiation

This Agreement:

(a)           expresses and incorporates the entire agreement between the parties concerning its subject matter, and all the terms of that agreement; and
(b)           supersedes and excludes any prior or collateral negotiation, understanding, communication or agreement by or between the parties concerning that subject matter or any term of that agreement.

21.8       Further assurances

Each party must execute any document and perform any action necessary to give full effect to this Agreement, whether before or after performance of this Agreement.

21.9       Continuing performance

(a)           The provisions of this Agreement do not merge with any action performed or document executed by any party for the purposes of performing this Agreement.
(b)           Any representation in this Agreement survives the execution of any document for the purposes of, and continues after, performance of this Agreement.
(c)           Any indemnity agreed by any party under this Agreement:
(i)            constitutes a liability of that party separate and independent from any other liability of that party under this Agreement or any other agreement; and
(ii)           survives and continues after performance of this Agreement.

21.10     Waivers

Any failure by a party to exercise any right under this Agreement does not operate as a waiver.  The single or partial exercise of any right by that party does not preclude any other or further exercise of that or any other right by that party.

21.11     Remedies

The rights of a party under this Agreement are cumulative and not exclusive of any rights provided by law.

21.12     Severability

Any clause of this Agreement which is invalid in any jurisdiction, is invalid in that jurisdiction to that extent, without invalidating or affecting the remaining clauses of this Agreement or the validity of that clause in any other jurisdiction.

21.13     Counterparts

This Agreement may be executed in any number of counterparts, all of which taken together are deemed to constitute the same document.  The counterparts of this Agreement may be executed electronically and delivered by electronic means by either party to the other party, and the receiving party may rely on the receipt of such document so executed and delivered by electronic means as if the original had been received.

Schedule 1 – Managed Services Terms and Conditions

1. Services
   • On- and off-boarding assistance

If and to the extent set out in the Work Order, Aliva will conduct the on-boarding and/or off-boarding processes specified in the Work Order prior to the provision of the Services or on termination or expiry of the Work Order, as the case may be. Customer acknowledges that Aliva’s timeframe to on-board Customer is dependent on the number of End Users. Aliva will advise Customer on the on-boarding timeframe applicable to Customer.

• Scope of Services
  • Subject to clause 1.3, the scope of the Services is set out in the Work Order.
  • If Customer requests Aliva to provide Services outside the scope of the Services, Aliva may agree to provide such additional services in accordance with Aliva’s then-current time and materials rates.
• Exclusions

Unless otherwise agreed under the Work Order, the following are excluded from the scope of the Services:

• the provision of the Services outside of Aliva’s normal business hours;
• any work at the Location, including any travel or accommodation required to conduct work at the Location;
• any additional services arising from Customer changing Customer Environment or Customer Equipment (other than as agreed in writing) including the relocation of any Customer Equipment;
• any additional services arising from Customer’s failure to install any error correction, patches, new versions or new releases supplied or made generally available by Aliva or the relevant third party supplier;
• any additional services arising from Customer’s failure to action any Recommendations;
• Project Based Work;
• work on or resulting from a Cyber Breach including, but not limited to recovery of data or systems and forensic investigation work;
• work related to Hardware failure where either a warranty is not in place, or an extension of the warranty has been applied after the expiration of the original warranty; and
• any other services not included, or specifically excluded, in the Work Order.

• Provision of Services
  • Subject to the payment of the Fees, Aliva will provide the Services specified in the Work Order to Customer.
  • Aliva will use the reasonable care and skill that can be expected from a competent service provider in providing the Services to Customer in accordance with the Service Levels and will retain sufficient and appropriately qualified and experienced Personnel to provide the Services.
  • Aliva will use its best endeavours to meet the targeted response times and targeted resolution times for applicable Services based on the agreed Service Levels.
  • Customer acknowledges and agrees that the Services or components of the Services may be performed via third party telecommunications and internet service providers and that outages, and performance degradations or unavailability attributable to such service providers are beyond the control of Aliva and may impact Aliva’s ability to provide the Services in accordance with the Service Levels. Aliva will however take all reasonable steps to ensure that such service providers comply with the availability requirements of this Agreement.
  • If and to the extent that scheduled maintenance is to be carried out as part of the Services, such maintenance will be performed during the Maintenance Window. If:
    • the scheduled maintenance is unable to be completed within the Maintenance Window, Aliva will promptly notify Customer; or
    • if emergency maintenance is required, subject to Aliva providing Customer with prior notice,
    • it may be performed at alternative times to the Maintenance Window.

2. Software, Equipment and Hardware
   • General obligations, access and rights
     • Customer acknowledges that all title in and to any Software or Equipment provided by Aliva to Customer with the provision of the Services remains at all times with Aliva.
     • Customer acknowledges and agrees that Equipment will only be affixed to the Location if it is it is reasonably necessary for its ordinary use. If the Equipment is attached to the Location, the Hardware does not become a fixture and Aliva may remove the Equipment in accordance with this Agreement.
     • Customer must not part with possession of the Equipment without the prior written consent of Aliva.
     • Customer must:
       • properly operate any Equipment in accordance with the reasonable requirements and instructions of Aliva;
       • ensure the Equipment is maintained in substantially good repair and condition during the Term;
       • not perform any maintenance or repairs on the Equipment, or permit any third party to do so, without Aliva’s prior written consent; and
     • ensure the Equipment does not damage, hinder or unduly interfere with any other third party or their equipment.
   • Procurement and sale of Hardware
     • This clause 2.2 applies to the extent Aliva supplies Hardware to Customer under a Work Order. The supply of Hardware is independent of the provision of Services and must be specified in the Work Order.
     • Risk in the Hardware passes to Customer immediately on delivery of Hardware to the Location and title passes to Customer on payment of the Fees in full to Aliva. Customer must pay the Fees in respect of the Hardware in advance and prior to delivery, unless otherwise agreed in the Work Order.
     • Customer must not do anything to affect ownership of the Hardware, unless and until title has passed to Customer.
     • Customer must obtain and maintain all necessary consents, permits, licences, registrations and approvals from any government, body corporate, landlord or entity for the Hardware to be installed, used, hired, maintained, upgraded, inspected and/or accessed at the Location by Aliva or its Personnel.
     • Subject to clause 19.3 of the Agreement, Customer acknowledges and agrees Aliva makes no representations and gives no warranties in respect of Hardware, including that the Hardware is fit for any particular purpose.
   • Delivery of Equipment and Hardware
     • Subject to the payment of the applicable Fees, Aliva will:
       • install the Equipment or Hardware at the Location on or before the date specified in a Work Order or otherwise agreed with Customer in writing; and
       • ensure the Equipment or Hardware is operational in accordance with the Operating Manuals.
     • Without limiting paragraph (a), Customer acknowledges that Aliva may deliver the Equipment Hardware in instalments.
     • Customer will sign a Customer Acceptance Form immediately upon delivery of the Equipment or Hardware as confirmation that Customer has accepted the Equipment or Hardware. If the Customer Acceptance Form is not signed, the Equipment or Hardware will be deemed accepted by Customer within five (5) Business Days of delivery of the Equipment or Hardware to the Location.  Upon installation of the Equipment or Hardware, Customer will sign a further Customer Acceptance Form, which will be evidence Customer has accepted installation of the Equipment or Hardware.
   • Installation of Hardware
     • If and to the extent set out in the Work Order:
       • Aliva will attend to the installation of the Hardware in accordance with the operating Manuals at the Location on or before the date agreed by the parties during normal business hours, subject to the payment of the applicable Fees; and
       • Customer will obtain and maintain all necessary consents, permits, licences, registrations and approvals from any Government, body corporate, landlord or entity for the Hardware to be installed, used, hired, maintained, upgraded, inspected and/or accessed at the Location by Aliva or its Personnel.
     • Customer will notify Aliva as soon as possible after the installation of the Hardware if there are any material defects in the installation. The installation of the Hardware will be deemed to have been accepted by Customer if Aliva does not receive such a notice from Customer within five (5) Business Days from the date of installation of the Hardware.
   • Customer Equipment

Subject to any negligent act or omission of Aliva and to the extent permitted by any applicable laws, Customer remains solely responsible and liable for its access and use of its own equipment and software (Customer Equipment) and indemnifies Aliva against all Claims, losses, liabilities, damage and injury incurred by Customer, Aliva or any third party by or as a result of use of such Customer Equipment.

3. Third Party Software and Third Party Services
   • Third Party Software
     • This clause applies to the extent that Aliva procures Third Party Software for Customer under the Work Order. The supply of Third Party Software is independent of the provision of Services and must be specified in the Work Order.
     • Customer acknowledges and agrees that:
       • its access to and use of the Third Party Software is governed by the Third Party Terms which are direct between Customer and the relevant third party licensor;
       • Customer is solely responsible for its compliance with the Third Party Terms; and
       • Aliva makes no representations and gives no warranties in respect of the Third Party Software, including that the Third Party Software is fit for any particular purpose.
     • Third Party Services
       • This clause applies to the extent Aliva procures Third Party Services for Customer under the Work Order. The supply of Third Party Services is independent of the provision of Services and must be specified in the Work Order.
       • Customer acknowledges and agrees that:
         • the provision of the Third Party Services is governed by the Third Party Terms;
         • Customer is solely responsible for its compliance with the Third Party Terms; and
         • Aliva makes no representations and gives no warranties in respect of the Third Party Services, including that the Third Party Services is fit for any particular purpose.

4. Customer obligations and warranties
   • General obligations
     • Customer will:
       • do all things necessary to enable Aliva to perform its obligations under this Agreement including performing any works, providing any Customer Equipment or connecting any services as required by Aliva from time to time;
       • provide Aliva with access to the Location and Customer Personnel as and where requested by Aliva;
       • comply with all laws applicable to the Location including occupational health and safety laws;
       • comply with all data retention laws applicable to Customer;
       • provide Aliva with all information and documentation as requested by, or as otherwise necessary for Aliva;
       • comply with all reasonable directions, documentation, and Operating Manuals applicable to the use of the Services, Software, Equipment or Hardware;
       • use reasonable security precautions in light of its use of the Services;
       • co-operate with Aliva’s reasonable investigations of outages, security problems and any suspected breach of this Agreement;
       • keep the contact and other account information that Aliva holds about it up-to-date;
       • not use or attempt to use the Services for any activity which breaches any law, order, regulation or industry code of practice;
       • not distribute, store or publish any content or material that is restricted, illegal or otherwise unlawful under any applicable law, or which is likely to be offensive or obscene to a reasonable person; and
       • not interfere or attempt to interfere in any manner with the functionality or proper operation of the Services.
     • Customer acknowledges and agrees that the effective and timely provision of the Services requires Customer to:
       • provide prompt instructions and decisions; and
       • implement and incorporate any Recommendations that Aliva may make in respect of Customer Environment.
     • Customer warranties and indemnity
       • Customer warrants that:
         • it owns all right, title and interest in or it has the right to use any software, hardware, systems, IP addresses, domain names and all other items in Customer Environment;
         • Customer Environment is in good working order and it has sole responsibility for the availability and integrity of Customer Environment;
         • it will take all reasonable precautions to safeguard its business and specifically its Customer Environment, the Software and Equipment, the Hardware and all other applicable software, hardware and data to minimise any loss or disruption, including (as applicable) implementing effective audit control, firewalls, virus checking controls, data security measures and appropriate data and software back-ups; and
         • it will comply with Aliva’s or the applicable third party supplier’s written instructions for the access and use of all Software, Equipment or Hardware used within Customer Environment.
       • Customer indemnifies Aliva against any Claims arising from Customer’s or its Personnel’s acts or omissions in relation to the Services, Aliva’s Software and Equipment, Hardware, Third Party Software or Third Party Services.
     • No resale

Unless otherwise agreed in writing between the parties, Customer must not resell or re-supply any of the Services, or any Software or Equipment, Third Party Software or Third Party Services.

5. Location and access requirements
   • Customer will:
     • at its own expense and in accordance with the reasonable directions and specifications of Aliva and its Personnel, prepare and provide access to the Location prior to the supply of the Services;
     • ensure that the Location is maintained in good working repair and condition;
     • ensure the supply of adequate electric current and electrical and mechanical fittings at the Location;
     • provide Aliva with an appropriate workstation, desk, and any Software and Equipment necessary for Aliva to perform the Services;
     • ensure existing building connection frames, cables and sockets are in good working order;
     • notify Aliva of the location of the Equipment or Hardware; and
     • allow Aliva Personnel to access its Location, facilities and specified equipment to perform its obligations under this Agreement.
   • If Customer fails to provide Aliva Personnel with access to its Location, facilities and specified equipment, Customer acknowledges and agrees that Aliva may be unable to provide the Services adequately and in such circumstances, Aliva is not liable to Customer for any failure to perform the Services under this Agreement.
6. Audits and Reporting
   • Audits
     • Customer may (either by itself or through an authorised auditor appointed by Customer) periodically, but in no event more than once in any 12-month period, conduct an audit to assess Aliva’s compliance with this Agreement or the Work Order.
     • Aliva will, on Customer’s reasonable request:
       • facilitate, participate in and co-operate with any audit carried out under this clause 6.1 in good faith, including by providing Customer and Customer’s authorised auditor with such reasonable access to Aliva’s systems, facilities, premises, records, books and Personnel as is required for the purposes of the audit;
       • permit Customer or its authorised auditor to take copies of such of Aliva’s records and books relating to the Services (but excluding any information relating to Aliva’s internal profits or margins) as are reasonably required for the purposes of carrying out the audit; and
       • grant access to Aliva’s premises on reasonable notice of at least ten (10) Business Days and during normal business hours to the extent reasonably required to inspect or audit the performance of Aliva’s obligations under this Agreement.
     • Customer will bear its own costs and expenses in carrying out the audit and must comply with Aliva’s reasonable security requirements notified to them in writing.
   • Reporting

Aliva will comply with all agreed reporting obligations set out in this Agreement and in the relevant Work Order.

7. Fees
   • Fees
     • The Fees for the Services, Equipment, Hardware, Third Party Software, and Third Party Services will be specified, invoiced and paid in accordance with the Work Order.
     • In consideration for the provision of the Services, Equipment, Hardware, Third Party Software, and/or Third Party Services (as applicable), Customer will pay Aliva the Fees in accordance with the Work Order.
   • Variation to the Fees
     • Aliva may vary the Fees with notice to Customer should any adjustments be required that affect the monthly service inclusions or Fees for a particular month, including:
       • as further set out in clause 8; or
       • any changes to the costs of Third Party Software or Third Party Services.
     • Customer acknowledges and agrees that at the end of each financial year, Aliva may increase the Fees by the CPI rate without prior notice to Customer.
     • Customer agrees that any change in the Fees under this clause may be notified to Customer in an Aliva invoice. If Customer does not agree to the variation to the Fees, it will notify Aliva in writing within seven (7) days from the relevant invoice.

8. Changes to End Users or Customer Environment

Customer acknowledges and agrees that Aliva may vary the terms of this Managed Services Schedule and/or the Fees due to:

• any change in the number of End Users; and/or
• a material change in Customer Environment,
• in accordance with the process set out in the Work Order.

9. Definitions

In this Agreement, unless the context requires otherwise:

Customer Acceptance Form means the form Customer or its agent signs upon the delivery and/or installation of Hardware;

Customer Equipment has the meaning in clause 2.5;

Maintenance Window means the times specified in the Work Order during which maintenance will be performed;

Managed Services Schedule means these terms and conditions;

Third Party Software means any software independently procured by Customer from Aliva;

Third Party Services means any services which Aliva resells on behalf of a third party to Customer; and

Third Party Terms means the additional terms and conditions applicable to Third Party Software or Third Party Services.

Schedule 2 – Project Services Terms and Conditions

10. Project
    • Scope of Project
      • Subject to clause 10.2, the scope of the Project is set out in the Work Order.
      • If the Customer requests Aliva to provide services outside the scope of the Project, Aliva may agree to provide such additional services in accordance with the Fees.
    • Exclusions

Unless otherwise agreed under the Work Order, the following are excluded from the scope of the Project:

• the provision of the Services outside Aliva’s normal business hours;
• any travel or accommodation required to provide the Services at the Location;
• any additional Services arising from the Customer changing the Customer Environment or Customer Equipment (other than as agreed in writing) including the relocation of any Customer Equipment;
• any additional Services arising from the Customer’s failure to comply with or action any of the Customer Dependencies;
• work on or resulting from a Data Breach including, but not limited to recovery of data or systems and forensic investigation work;
• work related to Hardware failure where either a warranty is not in place, or an extension of the warranty has been applied after the expiration of the original warranty; and
• any other Services not included, or specifically excluded, in the Work Order.

• Delivery of the Project
  • Subject to the payment of the Fees, Aliva will deliver the Project specified in the Work Order to the Customer.
  • Aliva will use all reasonable endeavours to meet the Project Timetable.
  • Where Aliva delivers the Project in conjunction with Aliva’s third party service providers, Aliva will provide details including any applicable third party service provider terms and conditions, which may also apply to the delivery of the Project.
• Customer Dependencies

Customer will provide Aliva with the Customer Dependencies in accordance with the relevant Work Order and this Project Services Schedule.

• Reliance on information provided by the Customer

Aliva is entitled to rely on the Customer Dependencies supplied by the Customer pursuant to and in accordance with clause 10.4, and Aliva will not be liable for a breach of this Project Services Schedule to the extent that the breach is caused or contributed to by Aliva relying on incomplete, inaccurate or incorrect Customer Dependencies supplied by the Customer pursuant to and in accordance with clause 10.4.

• Feasibility studies

The obligations of Aliva under the Work Order are subject to and conditional upon:

• Aliva finalising to its satisfaction, any technical feasibility issues and pre-installation checks; and
• the Customer and its Personnel having provided correct, up-to-date and accurate information to Aliva.

• Change to Customer Environment
  • During the Term, the Customer will provide Aliva with access to the Customer Environment for the purpose of delivering the Project.
  • If it is determined by Aliva, acting reasonably, that the Customer Environment has materially changed, Aliva reserves the right to alter or otherwise re-negotiate any terms of this Agreement or to vary the Work Order to suit the new Customer Environment.
• Customer acknowledgements
  • Aliva is not responsible for any failure to perform any of its obligations under this Project Services Schedule, where, in the opinion of Aliva, such failure is caused or contributed to by the Customer, the Customer’s Personnel or any third party.
  • The Customer acknowledges that if the completion of the delivery of the Project is delayed or is required to be altered as a result of the following:
    • if Aliva suspends the provision of the delivery of the Project in accordance with its rights under this Project Services Schedule;
    • if Aliva is required to deliver the Project in circumstances other than those expressly or reasonably anticipated in this Project Services Schedule or set out in the Work Order;
    • if there is a change in timing or complexity of the Project; or
    • if any of the assumptions or limitations in the Work Order are incorrect, subject to change or is altered by agreement between the Parties,

then the Customer acknowledges and agrees that:

• the Project Timetable as set out in the Work Order or otherwise agreed, will be delayed or changed as Aliva reasonably considers necessary;
• Aliva may charge the Customer an amount equal to its reasonable loss, damage, or expenses incurred as a result of the delay or change in the assumptions or liabilities without limitation an amount equal to the Rates; and
• Aliva may increase the Fees relating to the provision of the amended or revised Project which is required as a result of any of the events listed in this clause 10.8(b).

• Location
  • Aliva, where required, will deliver the Project at the Location or other such location as agreed to by the Parties from time to time.
  • Customer shall be responsible for providing Aliva and its Personnel with a safe working environment while at the Location at all times.
  • Customer will indemnify Aliva and its Personnel for any:
    • failure to comply with the obligations under this clause 10.9; and
    • loss or damage suffered (including personal injury) whilst at the Location.

11. Software and Equipment
    • General obligations, access and rights
      • Customer acknowledges that all title in and to any Software or Equipment provided by Aliva to Customer with the provision of the Services remains at all times with Aliva.
      • Customer acknowledges and agrees that Equipment will only be affixed to the Location if it is it is reasonably necessary for its ordinary use. If the Equipment is attached to the Location, the Hardware does not become a fixture and Aliva may remove the Equipment in accordance with this Agreement.
      • Customer must not part with possession of the Equipment without the prior written consent of Aliva.
      • Customer must:

(i)            properly operate any Equipment in accordance with the reasonable requirements and instructions of Aliva;
(ii)           ensure the Equipment is maintained in substantially good repair and condition during the Term;
(iii)          not perform any maintenance or repairs on the Equipment, or permit any third party to do so, without Aliva’s prior written consent; and
(iv)          ensure the Equipment does not damage, hinder or unduly interfere with any other third party or their equipment.

• Procurement and sale of Hardware

(b)           This clause 11.2 applies to the extent Aliva supplies Hardware to Customer under a Work Order. The supply of Hardware is independent of the provision of Services and must be specified in the Work Order.
(c)           Risk in the Hardware passes to Customer immediately on delivery of Hardware to the Location and title passes to Customer on payment of the Fees in full to Aliva.  Customer must pay the Fees in respect of the Hardware in advance and prior to delivery, unless otherwise agreed in the Work Order.
(d)           Customer must not do anything to affect ownership of the Hardware, unless and until title has passed to Customer.
(e)           Customer must obtain and maintain all necessary consents, permits, licences, registrations and approvals from any Government, body corporate, landlord or entity for the Hardware to be installed, used, hired, maintained, upgraded, inspected and/or accessed at the Location by Aliva or its Personnel.
(f)            Subject to clause 19.3 of the Agreement, Customer acknowledges and agrees Aliva makes no representations and gives no warranties in respect of Hardware, including that the Hardware is fit for any particular purpose.

• Delivery of Equipment and Hardware
  • Subject to the payment of the applicable Fees, Aliva will:
    • install the Equipment or Hardware at the Location on or before the date specified in a Work Order or otherwise agreed with Customer in writing; and
    • ensure the Equipment or Hardware is operational in accordance with the Operating Manuals.
  • Without limiting paragraph (a), Customer acknowledges that Aliva may deliver the Equipment Hardware in instalments.
  • Customer will sign a Customer Acceptance Form immediately upon delivery of the Equipment or Hardware as confirmation that Customer has accepted the Equipment or Hardware. If the Customer Acceptance Form is not signed, the Equipment or Hardware will be deemed accepted by Customer within five (5) Business Days of delivery of the Equipment or Hardware to the Location. Upon installation of the Equipment or Hardware, Customer will sign a further Customer Acceptance Form, which will be evidence Customer has accepted installation of the Equipment or Hardware.
• Customer Equipment

Subject to any negligent act or omission of Aliva and to the extent permitted by any applicable laws, Customer remains solely responsible and liable for its access and use of its own equipment and software (Customer Equipment) and indemnifies Aliva against all Claims, losses, liabilities, damage and injury incurred by Customer, Aliva or any third party by or as a result of use of such Customer Equipment.

12. Acceptance
    • Acceptance Testing

Unless otherwise specified in the Work Order, Aliva will provide the Deliverables to Customer for Acceptance Testing. Customer will have five (5) Business Days to inspect, test and evaluate the Deliverable to determine whether it is satisfactory.

• Acceptance
  • If the Deliverable does not satisfy the Acceptance Testing, Customer will, within five (5) Business Days of receiving the Deliverable, provide Aliva with a Revision Notice.
  • Aliva shall have thirty (30) Business Days from the receipt of a valid Revision Notice to assess the Revision Notice and correct any Defects, if any, and resubmit the Deliverables to Customer for re-testing. The process in this clause shall be repeated no more than once.
  • If and when the Acceptance Testing establishes that the Deliverables comply with the Work Order, Customer shall notify Aliva that it accepts the Deliverables.
• Deemed Acceptance

If:

• a five (5) Business Day period of Acceptance Testing has elapsed without Customer giving notice, written or otherwise, to Aliva; or
• Customer accesses or uses the Deliverables in a live or production environment,

the Deliverables will be deemed satisfactory and accepted by the Customer, and payment of all Fees for the Deliverable will be due and payable in accordance with this Project Services Schedule.

13. Customer obligations
    • General obligations
      • Customer will:
        • do all things necessary to enable Aliva to perform its obligations under this Agreement including performing any works, providing any Customer Equipment or connecting any services as required by Aliva from time to time;
        • comply with or action the Customer Dependencies;
        • provide Aliva with access to the Location and the Customer Personnel as and where requested by Aliva;
        • comply with all Laws applicable to the Location including occupational health and safety laws; and
        • provide Aliva with all information and documentation as requested by, or as otherwise necessary for Aliva.
      • Customer acknowledges and agrees that the effective and timely delivery of the Project requires Customer to:
        • provide prompt instructions and decisions; and
        • comply with or action the Customer Dependencies within the timeframes set out in the Work Order.
      • Location and access requirements

Customer will:

• at its own expense and in accordance with the reasonable directions and specifications of Aliva and its Personnel, prepare and provide access to the Location prior to the delivery of the Project;
• ensure that the Location is maintained in good working repair and condition;
• ensure the supply of adequate electric current and electrical and mechanical fittings at the Location;
• provide Aliva with an appropriate workstation, desk, and any Customer Equipment necessary for Aliva to deliver the Project;
• ensure existing building connection frames, cables and sockets are in good working order;
• notify Aliva of the location of the Customer Equipment or Hardware;
• allow Aliva Personnel to access its Location, facilities and specified Customer Equipment to perform its obligations under this Agreement. If Customer fails to provide Aliva Personnel with access to its Location, facilities and specified Customer Equipment, Customer acknowledges and agrees that Aliva may be unable to deliver the Project and in such circumstances, Aliva is not liable to Customer for any failure to deliver the Project under this Project Services Schedule; and
• obtain and maintain all necessary consents, permits, licences, registrations and approvals from any Government, body corporate, landlord or entity for the Deliverables to be installed, used, hired, maintained, upgraded, inspected and/or accessed at the Location by Aliva or its Personnel.

• Customer warranties

Customer warrants that:

• the Customer Dependencies and Customer’s materials, or their use by Aliva or its Personnel, will not violate, misappropriate or infringe any Intellectual Property Rights or any other personal, privacy or moral rights arising under the applicable law of any person or entity;
• the Customer Dependencies and Customer Materials are true, complete, accurate, and not misleading in any way;
• provision of the Customer Dependencies by it will comply with all applicable Laws and standards and industry codes of conduct;
• the execution and performance by it of this Agreement or any Work Order does not and shall not in any respect violate any Law or agreement with any third party;
• it owns or has the right to use any software, hardware, systems, IP addresses, domain names and all other items in the Customer Environment;
• its Customer Environment is in good working order and that it has sole responsibility for the availability and integrity of the Customer Environment;
• it will follow Aliva’s or the manufacturer’s written instructions for all Software or Hardware used within the Customer Environment; and
• it will provide a healthy and safe workplace at the Location that complies with all relevant health and safety requirements and Laws at both a state and federal level.

14. Materials
    • Customer Materials
      • Aliva acknowledges that Customer is the proprietor or licensee of all Intellectual Property Rights in Materials provided by Customer to Aliva under or in connection with this Project Services Schedule (Customer Materials).
      • Customer grants Aliva a non-exclusive, non-transferable, royalty-free licence to use the Intellectual Property Rights in the Customer Materials for the Project and the purpose of Aliva performing its obligations under this Project Services Schedule.
    • Aliva Materials
      • Customer acknowledges that Aliva is the proprietor or licensee of all Intellectual Property Rights in Materials provided by Aliva to Customer under or in connection with this Project Services Schedule (Aliva Materials).
      • On payment of the Fees in full, Aliva grants Customer a non-exclusive, non-transferable, royalty-free licence to use the Aliva Materials for the sole purpose of receiving the benefit of the Services and Deliverables.

15. Fees and Payment
    • Fees
      • The Fees will be specified, invoiced and paid in accordance with the Work Order.
      • In consideration for the delivery of the Project, Customer will pay Aliva the Fees in accordance with the Work Order.
    • Milestone Payments

Where Fees are to be paid by Customer to Aliva in Milestone Payments, Customer acknowledges and agrees that:

• the Milestone Payments are instalments of the Fees payable under the Work Order, which will be paid in accordance with the relevant Payment Date;
• Aliva has apportioned the Fees to the Milestone Payments for convenience only, and the value of the Milestone Payments do not correspond with the Deliverables to be completed or the work or effort to be applied by Aliva to the relevant Milestone; and
• if this Agreement is terminated for whatever reason, Aliva’s claim for payment under clause 17.3 of the Master Services Agreement will be calculated by Aliva by reference to the portion of the Project performed up to the date of termination, regardless of whether Milestones are complete or incomplete.

16. Security
    • Security

If and to the extent required under the Work Order, the Customer will provide Aliva with a security for its performance of its obligations under this Project Services Schedule and the Work Order in the form of a deposit.

• Reduction and Return of Security

Subject to Aliva’s right to have recourse to the security, the balance of the security retained will either be:

• applied to any outstanding amounts payable by Customer to Aliva; or
• released and paid to Customer within 10 Business Days of the termination or expiry of this Project Services Schedule.

17. Definitions

In this Project Services Schedule unless the context otherwise requires:

Acceptance Testing has the meaning set out in the Work Order;

Customer Dependencies means the Customer Materials, inputs, items, resources and other tasks which the Aliva requires from the Customer for the delivery of the Project, as set out in the Work Order or as reasonably required by the Aliva from time to time;

Customer Environment means the Customer’s information technology, telecommunications, internet and other relevant infrastructure that interfaces with the Deliverables;

Customer Equipment has the meaning in clause 11.4;

Customer Materials has the meaning in clause 14.1;

Defect means a material fault, error, failure, degradation, deficiency or malfunction that causes the Deliverables to not perform materially in accordance with the Work Order;

Material means documents, reports, plant, equipment, tools, appliances and other material (whether written or in electronic form) supplied or made available by or on behalf of a party to the other under this Project Services Schedule;

Milestone means a particular stage or event in the Project identified in the Work Order;

Milestone Date means the date by which a Milestone must be achieved, as specified in the Work Order;

Milestone Payment means the instalment of the Fees payable for a Milestone, as specified in the Work Order;

Payment Date means the date on which a Milestone Payment is due and payable, as specified in the Work Order;

Project Services Schedule means these terms and conditions;

Project means the Services and Deliverables to be provided pursuant to the Work Order;

Project End Date means the date of expiry of the Project, as specified in the Work Order;

Project Start Date means the date of commencement of the Project, being the date on which both Parties execute the Work Order;

Project Timetable means the timetable set out in the Work Order setting out the applicable Milestones, Milestone Dates, Milestone Payments, and Payment Dates applicable to the Project;

Revision Notice means a notice stating the reasons as to why the Customer believes the Deliverable does not meet the Acceptance Testing; and

all other capitalised terms have the meaning given in clause 1.1 of the Agreement.