Services Agreement

These are the Standard Terms and Conditions for the Services Framework Agreement

SERVICES FRAMEWORK AGREEMENT

Definitions

The following terms will have the following meanings in this Agreement:

Acceptance Criteria shall mean the criteria that is jointly developed and mutually agreed between Kettering and Customer at least thirty (30) days before delivery of the Deliverables.

Acceptance Date shall mean the date on which the Deliverables are deemed to have been accepted.

Affiliate(s) shall mean legal entities affiliated with Customer, in which Customer a) directly or indirectly holds more than fifty percent (50%) of the nominal value of the issued share capital, or b) has more than fifty percent (50%) of the voting power at general meetings; or c) has the power to appoint a majority of the directors; or d) otherwise maintains core control of such company.

Agreement shall mean this document and any annexes or amendments to this document, as well as any Work Orders, whether available at the effective date of this Agreement or added at a later date in accordance with the procedures outlined in this Agreement.

Change Order shall mean a document in which changes to a Work Order are documented. A Change Order will document the work required to implement the change, the associated costs and a time frame for execution.

Deliverable shall mean the invention or improvement which Kettering may conceive or develop in connection with the Services or any work product created in connection therewith, including any intellectual property rights in or related to the Deliverables.

Electronic Communication has the meaning given to it under the Electronic Transactions (Queensland) Act 2001 (Qld).

Formal Acceptance Test shall mean the test conducted on the following terms:

Kettering shall notify Customer in writing that the Deliverable is ready for acceptance;
upon receipt of such notice, Customer shall test the Deliverable for two (2) weeks and in a manner consistent with the Acceptance Criteria;
upon the expiration of such two (2) week period, Customer shall either:-
- (i) certify to Kettering that the Deliverable is accepted; or
- (ii) deliver to Kettering a written description of any specific claimed defects in the Deliverable which defects shall be limited to the failure of the Deliverable to conform to the relevant Work Order;
upon receipt of such written description, Kettering shall determine whether any of such claimed defects are bona fide defects, and if so, shall proceed to remedy the same, whereupon the Deliverable shall be retested in accordance with the above procedure;
in the absence of such written description of any bona fide defects the Deliverable shall be deemed accepted by Customer.

“GST Law” means the same as “GST Law” means in A New Tax System (Goods and Services Tax) Act 1999 (Cth).

License and Maintenance Agreement shall mean the agreement(s) under which Customer has licensed software and purchased maintenance for Kettering applications and related software from Kettering or its distributors.

Personal Data shall mean any information related to any identified or identifiable person and any other additional data deemed as personal data under the applicable personal data protection laws.

QAD shall mean the QAD Group of Companies forming QAD Inc., with an address of 100 Innovation Place, Santa Barbara, CA 93108 USA, and any directly or indirectly held subsidiaries of QAD Inc.

Services shall mean the Services governed by this Agreement and documented in a Work Order.

Work Order shall mean either a work order, a statement of work or a quotation, all of which are documents in which the Services are described in detail (including the pricing) and formally ordered from Kettering, that has been either:-

signed by the Customer;
agreed by the Customer in writing; or
agreed by the Customer by taking any step that is consistent with the acceptance of the quotation. .

Services

Work Order Required. In return for the agreed upon fee, Kettering shall provide the Services to Customer or Affiliate (in the remainder of this Agreement a reference to Customer may refer to an Affiliate, e.g. when the Affiliate is ordering the Services). Services shall only be provided on the basis of a Work Order and any obligation to provide Services, and to pay for same, shall only come commence once a Work Order exists..

Contracting Party. Customer and/or Affiliates can purchase Services for their own benefit and for the benefit of other Affiliates under the terms and conditions of this Agreement. Affiliates cannot independently enforce this Agreement.

Affiliate Responsibility. Customer warrants and represents that any Affiliate that receives Services on the basis of this Agreement will comply with any obligations formulated in this Agreement. Customer will indemnify Kettering for damages caused by the breach of obligations by Affiliates.

Communication and Cooperation

Contacts. Kettering and Customer shall each appoint a contact person for any issues related to this Agreement. The contact persons and any changes to the contact persons will be communicated to the other party in writing. If parties wish to make additional arrangements around communication, such arrangements can be made in a Work Order.

Cooperation. Customer acknowledges that the timely provision of, and access to, assistance, cooperation, complete and accurate information and data from its officers, agents, and employees are essential to the performance of any Services and that Kettering’s ability to complete any Services is dependent upon same. Customer shall provide Kettering with all information required by Kettering to be able to adequately fulfill its obligations under this Agreement. Unless specifically agreed upon in writing by Customer and Kettering, if the relevant information, requirement(s), project plan(s), schedule, scope, specifications(s), design(s), software, hardware product(s), or related system environments(s) or architecture are changed or delayed by Customer or any other person, Kettering shall not be responsible for the change, delay, or failure to provide information and Customer shall be liable for any additional charges by Kettering due to the change, delay, or failure to provide information by Customer.

New Services

Requests for New Services. Customer may request Kettering to prepare a proposal for the provision of new Services. Customer will document such a request to Kettering adequately. Kettering will inform Customer within a reasonable time if Kettering can provide the Services and, if so, under what conditions. Kettering will contact Customer if further details on the requested Services are required. If Kettering is willing to provide the Services, Kettering will prepare a proposal outlining the costs of the new Services, a description of the Services, and a time frame for execution.

New Work Orders. If Customer accepts Kettering’s proposal, the parties will prepare a new Work Order that will form an annexure to this Agreement as from the date of signature of both parties.

Changes to Services

Changes to Work Orders. During the term of a Work Order, either party can request a change to such Work Order (e.g. extension of the Services, additional capacity, a change in procedures). If a party requests a change, that party will deliver an adequately documented change request to the other party. If Customer requests a change, Kettering will, within a reasonable term, conduct a feasibility study. If Kettering requests a change, it will not start with the feasibility study until Customer has approved this study. The costs of any feasibility study will be paid by Customer. If the change is feasible, a Change Order will be prepared.

Change Order Required. Kettering will only implement a change after a Change Order has been signed by both parties.

Acceptance

Acceptance Test. If parties have agreed in writing that an acceptance test is appropriate for a certain Deliverable, the procedure outlined below shall apply.

Procedure. If Customer and Kettering have agreed that a certain Deliverable is subject to an acceptance test, then the Deliverable shall be deemed to have been accepted by Customer upon the first to occur of the following:

(a) the first operational use of the Deliverables in a “go live” environment; or

(b) the completion of a Formal Acceptance Test.

Payment

Invoicing. Invoices for Services, provided on a time and materials basis, will be issued twice monthly in arrears. Invoices for Services, provided on a fixed price basis, will be issued in accordance with the schedule agreed upon in a Work Order. Parties may attach a schedule with the agreed upon fees and rates as an annexure to this Agreement. Kettering reserves the right to assign the invoicing and the collection of payments due under this Agreement to other companies.

Expenses. Customer shall reimburse Kettering for documented and reasonable travel, administrative, and out-of-pocket expenses incurred in conjunction with the Services. Kettering’s standard policies concerning travel and living shall apply.

Payment Terms. Invoices shall be due and payable within fourteen (14) calendar days from the date of the invoice unless otherwise agreed between the Parties. If Kettering does not receive timely payment, Kettering may suspend performance of Services.

Interest. Any amounts due to Kettering under this Agreement which are not paid within the agreed payment term shall incur interest at the rate of one and one half percent (1½%) per month or any part of the month. The interest shall be calculated from the date payment is originally due under this Agreement until the date payment is made in full. Customer shall pay such interest, with all payments first being applied to interest and then to principal. Reasonable legal costs incurred by Kettering in enforcing its rights in relation to any overdue payment shall be paid by Customer to Kettering.

Taxes. Services fees are exclusive of all taxes, duties and fees. Customer shall make no deductions for taxes, duties or fees of any kind from any payment to Kettering under this Agreement. If Customer is required by law to withhold taxes, duties or fees, then Customer shall pay Kettering a gross amount of money, such that the net amount received by Kettering (after deducting or withholding the required taxes, duties or fees) is equal to the amount of the fee originally owed before subtracting such taxes, duties or fees. Taxes on the net income of Kettering are the responsibility of Kettering.

Confidentiality

Confidential Information. Both parties agree that any information obtained directly or indirectly, from the other party in connection with the Agreement and marked as “confidential” or “proprietary” or some similar legend, or made known to the other party as being confidential or proprietary is the confidential or proprietary property of such party (hereinafter “Confidential Information”). Information shall not be deemed Confidential Information, and the receiving party shall have no obligation with respect to any such information, which the receiving party can prove by written records:

is already in the public domain other than by a breach of this Agreement on the part of the receiving party; or
is rightfully disclosed to recipient by a third party which has the right to disclose the information and transmits it to the receiving party without any obligation of confidentiality; or
is rightfully known to the receiving party without any limitation on use or disclosure prior to receipt of the same from the disclosing party; or
is independently developed by personnel of the receiving party who have not had, either directly or indirectly, access to, or knowledge of, Confidential Information received from the disclosing party; or
is generally made available to third parties by the disclosing party without any restriction concerning use or disclosure; or
is approved for release by written authorization of the disclosing party; or
is required to be disclosed by a court or governmental entity with jurisdiction over the receiving party, and the receiving party gives the disclosing party prompt written notice sufficient to allow the disclosing party to seek a protective order or other appropriate remedy, and the receiving party discloses only such information as is legally required and uses reasonable efforts to obtain confidential treatment of any information so disclosed.

Treatment of Confidential Information. It is agreed that Confidential Information under the Agreement shall: (a) be kept confidential by the receiving party; (b) be treated by the receiving party in the same way as the receiving party treats Confidential Information generated by itself; (c) not be used by the receiving party otherwise than in connection with the Agreement; and (d) not be divulged by the receiving party, except to its personnel who have a need to know and have undertaken to keep the Confidential Information confidential.

Disclosure by Employees. Both parties shall use all reasonable steps to ensure that Confidential Information received under the Agreement is not disclosed by its employees or agents in violation of this Article.

Personal Data

Processing and Use of Personal Data. Kettering may process and use the Personal Data only to perform its obligations under the Agreement and may disclose them only to Kettering’s employees that have a need to know them for the performance of such obligations and are bound by the confidentiality obligations contained in this Agreement. Kettering may not disclose the Personal Data to any other party.

Additional Obligations. Kettering agrees: (a) to maintain reasonable security measures for the protection of Personal Data; (b) to act only on instruction from Customer in connection with protecting, collecting, storing, transferring and otherwise processing of Personal Data. Customer’s instructions may be implied or of a general nature; (c) not to copy or reproduce any Personal Data without the express written permission of Customer, except as technically necessary to comply with this Agreement; and (d) to inform Customer promptly in writing if it becomes aware of any unauthorized use or disclosure of Personal Data by itself or others.

Customer Responsibility. It is the responsibility of Customer to observe all relevant personal data protection laws. Customer will indemnify Kettering against any claims based on a breach by Customer of applicable personal data protection laws or any conflict of an instruction by Customer with any applicable personal data protections laws.

Intellectual Property

Ownership of Deliverables. If the performance of the Services results in the coming into existence of a Deliverable that is based on an existing product (or on existing intellectual property rights, know-how, etc.) and that is eligible for independent intellectual property protection, then the party that owns the intellectual property rights to the existing product on which the Deliverable is based will own the intellectual property rights to the Deliverable. If the performance of the Services results in the coming into existence of a Deliverable that is not based on an existing product, the intellectual property rights to such Deliverable are owned by Kettering. If a party owns intellectual property rights that should be owned by the other party under operation of the above rules, then such party hereby assigns such rights to the other party.

Grant of License. Upon receipt of payment for the Deliverable, Kettering hereby grants Customer a non-exclusive, non-transferable, perpetual and royalty-free license in accordance with the terms and conditions of the License and Maintenance Agreement to use the Deliverable to which Kettering owns the intellectual property rights. The terms and conditions of the License and Maintenance Agreement regarding the grant of a license are hereby incorporated by reference.

Kettering Expertise. As part of the Services provided under the Agreement, Kettering may use its expertise to develop certain templates, business rules, procedures or deliverables. Kettering shall own and have exclusive rights, title, and interest in any such templates, business rules, procedures or deliverables. Kettering may use such templates, business rules, procedures or deliverables whether they are substantially similar to or are the same as the templates, business rules, procedures or deliverables provided to Customer under the Agreement or otherwise when providing services to any third party.

Indemnification

Intellectual Property Indemnification. Kettering shall defend, at its expense, any action brought against Customer based on the claim that the use of the Services or the Deliverables, when used within the scope of this Agreement infringes any intellectual property rights. Kettering shall indemnify Customer for any damages finally awarded against Customer which are attributable to such claim, provided a) Customer notifies Kettering within ten (10) days of any suit or claim, b) Customer lets Kettering defend, compromise, or settle the claim, and c) Customer gives Kettering the requested information and fully cooperates in defending, compromising or settling the claim.

Additional Remedies. Kettering shall, in addition to indemnification, a) procure for Customer the right or license to use the Deliverables, or b) replace or modify the infringing Deliverables to make it non-infringing, or c) if the foregoing alternatives are not commercially reasonable, terminate the relevant Work Order under which the right to use the Deliverable was obtained, remove or accept the return of the Deliverables, and refund a portion of the fees paid for the Deliverables. A refund for Deliverables shall be determined based on a three (3) year straight-line depreciation of the fees paid for the Deliverables.

Exclusions. Kettering shall have no liability for any claim based on a) the use of anything other than the latest release of the Deliverables, if such infringement could have been avoided by the use of the latest release of the Deliverables, or b) use or combination of the Deliverables with software, hardware or other materials not provided by Kettering, or c) modification of the Deliverables by Customer or a third party.

Entire Liability. THIS ARTICLE STATES THE ENTIRE LIABILITY OF Kettering WITH RESPECT TO INFRINGEMENT OF COPYRIGHTS, TRADE SECRETS, PATENTS AND OTHER INTELLECTUAL PROPERTY RIGHTS ARISING FROM THE USE OF THE SERVICES OR THE DELIVERABLES.

Limited Warranty

Professionalism. Kettering represents and warrants that the Services provided by Kettering hereunder shall be performed in a professional and workmanlike manner.

Errors. Kettering warrants for a period of ninety (90) days after the Acceptance Date (or in case no acceptance test is conducted for a period of ninety (90) days after delivery) that the Deliverables provided as part of the Services shall be substantially free from material program errors and that they shall function substantially in accordance with the agreed upon specifications.

Repair Errors. Kettering shall, for a period of ninety (90) days after the Acceptance Date (or in case no acceptance test is conducted for a period of ninety (90) days after delivery), under the warranty outlined above, use commercially reasonable efforts to remedy without delay and at its cost by repair or replacement, any material program errors or material defects as aforesaid, of which Customer has notified Kettering in writing during the applicable warranty period.

Extended Warranty Period. After installation of a remedy for such a defect, the Customer shall have a thirty (30) day extension of the warranty for the affected Deliverables.

Warranty Requirements. The warranty described above shall only apply providing:

Customer provides written notice of the Deliverable’s material program error(s) or defect(s) in material and workmanship in reasonable detail within the warranty period.
Customer installs all releases and updates to the Deliverables provided by Kettering which intend to fix errors or defects.
Customer installs and uses the latest version of all prerequisite operating system and other software currently recommended by Kettering.
Customer has not modified the Deliverables in any way (If Customer modifies the Deliverables in any way, then the warranty applies only to the unmodified Deliverables as delivered by Kettering).
Customer uses the Deliverables in accordance with the instructions or manuals.

Refund of Fees. If Kettering determines that a material defect or error cannot be remedied in a reasonable time and on commercially reasonable terms, Kettering may terminate (part of) the affected Work Order and accept the return of the Deliverables in exchange for a refund of the fees actually paid by Customer to Kettering for the affected item. This clause states the Customer’s exclusive remedy and Kettering’s entire liability for breach of warranty or any other duty related to the quality of the Deliverables.

Third Party Products. Kettering makes no representations or warranties for Services that are performed with respect to defective third party products.

Limited Warranty. THE LIMITED WARRANTIES EXPRESSED IN THIS ARTICLE ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED. NO OTHER WARRANTY IS MADE HEREUNDER BY KETTERING AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW ALL OTHER GUARANTEES, TERMS, CONDITIONS, WARRANTIES, AND REPRESENTATIONS, EITHER EXPRESS OR IMPLIED BY STATUTE OR OTHERWISE, ARE EXCLUDED.

Guarantees

Deliverables Warranty. The Warranty included at Article 12.2 in relation to the Deliverables is in addition to any and all other rights which the Customer has in law in respect of the Deliverables.

To the extent that the Deliverables come with guarantees that cannot be excluded under any applicable Law or under this Agreement, the Customer is entitled to a replacement or refund for a major failure and compensation for any other forseeable loss or damage. The Customer is also entitled to have the Deliverables repaired or replaced if the Deliverables fail to be of acceptable quality and the failure does not amount to a major failure.

Extent of Liability. TO THE EXTENT THAT KETTERING’s LIABILITY FOR ANY GUARANTEE, TERM, CONDITION, WARRANTY OR REPRESENTATION CANNOT BE EXCLUDED UNDER ARTICLE 12.8 OR TO THE EXTENT THAT KETTERING’s LIABILITY CANNOT OTHERWISE BE LIMITED AS PROVIDED UNDER ARTICLES 11.3, 14.1 AND 14.3 KETTERING’s LIABILITY FOR A BREACH OF ANY GUARANTEE, TERM, CONDITION, WARRANTY OR REPRESENTATION IS LIMITED, AT THE OPTION OF KETTERING, TO:

IN RESPECT OF THE DELIVERABLES:
1. THE REPLACEMENT OR REPAIR OF THE DELIVERABLES;
2. THE SUPPLY OF EQUIVALENT DELIVERABLES; OR

THE COST OF REPLACING OR REPAIRING THE DELIVERABLES OR OF ACQUIRING EQUIVALENT DELIVERABLES.

IN RESPECT TO THE SERVICES:
1. THE SUPPLY OF THE SERVICES AGAIN; OR
2. THE PAYMENT OF THE COST OF HAVING THE SERVICES SUPPLIED AGAIN.

Limitation of Liability

Damages. TO THE MAXIMUM EXTENT PERMITTED BY THE APPLICABLE LAW, IN NO EVENT SHALL KETTERING BE LIABLE FOR ANY LOST REVENUES OR PROFITS OR OTHER SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES HOWEVER CAUSED AND REGARDLESS OF ANY THEORY OF LIABILITY, EVEN IF KETTERING HAS, OR SHOULD HAVE HAD, ANY KNOWLEDGE OF THE POSSIBILITY OF SUCH DAMAGES.

Third Parties. Kettering shall not be liable for any damages resulting from any activity or omission by a third party, including but not limited to Internet service providers and providers of telecommunications services.

Damages Limitation. The maximum liability of Kettering for any and all damages arising out of, or in connection with, the Services shall be limited to the amount paid by Customer under the particular Work Order for the Services that caused the damage.

Loss/Damage of Data. Any repair or replacement of the Deliverables may result in the loss of the Customer’s user-generated data. Kettering shall not be responsible for any loss or damage of data. Customer is responsible for having adequate backup procedures to avoid any loss or damage of data.

Personal Injury Liability. Nothing in this Agreement shall exclude or restrict the liability of Kettering for death or personal injury caused by the negligence of Kettering.

Term and Termination

Term. This Agreement shall be effective as of the Effective Date and shall remain in effect unless terminated by one of the parties as provided herein.

Termination for Convenience. Either party may terminate this Agreement without cause at any time there is no Work Order in effect by giving the other party thirty (30) calendar days prior written notice. Customer may terminate a Work Order at any time upon sixty (60) calendar days written notice to Kettering. If Customer terminates a Work Order for convenience, Customer shall pay Kettering for all Services performed by Kettering, including any Services provided during the sixty (60) calendar days after written notice is provided to KETTERING plus any fees/costs related to the inactivity of the Kettering consultants devoted to the Services during such sixty (60) day period. Kettering may terminate any Work Order at any time upon sixty (60) calendar days written notice to Customer provided, however, that Customer shall have the option to either (i) receive a refund of all amounts paid to Kettering for the terminated Work Order and receive no Deliverables under such terminated Work Order or (ii) receive from Kettering all Services and Deliverables done under the Work Order, whether complete or incomplete as of the date of termination, against payment of Kettering for such Services. Termination of a Work Order shall not terminate this Agreement.

Termination for Cause. Either party may terminate this Agreement or a Work Order upon the occurrence of a material breach of this Agreement or Work Order by the other party, provided the non-breaching party first gives the other party thirty (30) days to remedy such breach. If a breach is incapable of being remedied, or if a party is adjudicated as bankrupt under any applicable law or if a receiver, liquidator, administrator, custodian or similar official is appointed to manage the financial affairs of a party, termination can take place without providing the thirty-day period notice, unless such (earlier) termination is not permitted by law. Termination, either voluntary or involuntary, shall not entitle Customer to any refund for any fees paid nor shall it relieve Customer of the obligation to pay any outstanding amounts due to Kettering, unless provision is made to the contrary in this Agreement. If Kettering terminates a Work Order for cause, then any licenses to use the Deliverables are terminated as well.

Miscellaneous

Law Applicable to this Agreement. This Agreement shall be governed, construed and interpreted in accordance with the laws of Queensland, Australia. Any dispute, controversy or claim arising out of, relating to or in connection with this contract, including any question regarding its existence, validity or termination, shall be resolved by arbitration in accordance with the ACICA Arbitration Rules. There shall be a single arbitrator appointed under these Rules. The seat of arbitration shall be Brisbane, Australia. The language of the arbitration shall be English. The arbitral award, which shall be final and binding on both parties, may be enforced in any court having jurisdiction thereof. Any discovery as part of the arbitration process shall include the right to subpoena.
Legal Construction. To the extent that any law, statute, treaty, or regulation by its terms as determined by a court, tribunal, or other government authority of competent jurisdiction, is in conflict with this Agreement, the conflicting terms of this Agreement shall be superseded only to the extent necessary by the terms required by such law, statute, treaty, or regulation. If any portion of this Agreement shall be otherwise unlawful, void, or for any reason unenforceable, then that provision shall be enforced to the maximum extent permissible so as to effect the intent of the parties. In either case, the remainder of this Agreement shall continue in full force and effect.
Preprinted Purchase Order Terms and Conditions. Additional or different terms or conditions appearing on Customer’s purchase order shall be deemed null and void.

Priority

In case of conflict between this document and its annexes, the terms and conditions of this document take precedence over any terms and conditions in an annexure, unless it is explicitly indicated in the relevant annexure that parties intend to modify the terms and conditions of this document.
Assignment. Neither party shall assign or transfer its interest in the Agreement to third party without the other party’s prior written consent. Notwithstanding the foregoing, Kettering may assign this Agreement to an unrelated company pursuant to the sale, merger or other consolidation of Kettering or any of its operating divisions. Customer hereby consents to any such assignment in advance.
Staff and Sub-Contracting. Kettering will, at its sole discretion, decide which staff is used to perform the Services. Kettering is entitled to subcontract the Services in whole or in part to third parties, provided that Kettering will continue to warrant the Services under the terms and conditions of this Agreement.

Personnel. Customer shall not knowingly solicit, with the intent to employ, any employee or contractor of Kettering during the term of this Agreement and for six (6) months after termination of this Agreement unless Customer pays to Kettering an amount equal to six (6) months of such employee’s or contractor’s current compensation.
Publicity. Kettering is allowed to incorporate Customer’s name in the customer reference list of Kettering and in any public filings required by law and to issue a press release that the parties have entered into this Agreement.
Force Majeure. Except as it relates to Customer’s obligation to make payments, neither party shall be liable for delays or non-performance if such delays or non-performance are beyond such party’s reasonable control provided the party takes reasonable steps to remedy the delay or non-performance promptly.

Waiver. The waiver by any party of a breach or default by the other party of any provision of this Agreement shall not be construed as a waiver by such party of any succeeding breach or default by the other party of the same or another provision.

Notices. Unless otherwise specified in this Agreement, any notices required or permitted to be given pursuant to this Agreement shall be in writing, addressed to the addresses noted on page one of this Agreement. The Parties expressly consent to the giving of notices by Electronic Communication. Notice shall be treated as having been received upon the earlier of:

the actual receipt (e.g. in the case of facsimile transmission);
the time the Electronic Communication becomes capable of being retrieved from the addressee’s electronic address after sending by email; or
five (5) days after sending by post or courier.

These written communications shall be in such a manner that proof of delivery can be verified. Each party shall notify the other in writing in the event of any address change.

Language. The original of this Agreement has been written in the English language. Customer hereby waives any right Customer may have under the laws of the country in which the Services are provided to have this Agreement written in the native language.

Compliance with Laws. Customer and Affiliate shall be responsible for complying with all applicable governmental regulations of the Australia (including Australian export laws) and any foreign country (where applicable) with respect to the use of the Services. The Services are not to be used in any government and/or defense related activity unless approved under Australian Export Law and Regulation. Export/re-export of the Services may be contrary to Australian and other export laws. Customer and Affiliate shall defend, indemnify and hold Kettering harmless from and against any and all liabilities arising out of the non-compliance with applicable governmental regulations.

Entire Agreement. This Agreement, including exhibits, annexes, attachments, or amendments, which are incorporated herein by reference, contains the entire agreement between the parties with respect to the subject matter hereof and shall supersede any and all prior communications, representations, minutes, agreements, and/or undertakings, either verbal or written, between the parties regarding the said subject matter. Any modification of any of the terms and provisions of this Agreement must be in the form of an amendment to this Agreement and must be in writing and signed by duly authorized representatives of the parties.

Survival. The clauses of this Agreement which are by their nature intended to survive the expiry termination of this Agreement shall survive the expiry or termination of this Agreement. Such provisions include, but are not limited to, the provisions on Confidentiality, Intellectual Property, Indemnification, Limitation of Liability and Compliance with Laws.

Counterparts and Valid Signatures. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Both parties represent and warrant that the signatures on any documents are authorized, valid signatures and both parties agree that facsimile copies of such documents are acceptable as originals.

GST

Interpretation for the purposes of this Article. Words or phrases defined in the GST Law have the same meaning in this Article unless the context indicates otherwise.

Recipient of taxable supply to pay GST. A recipient of a taxable supply made under this Agreement must pay to the supplier, in addition to the consideration for the taxable supply, any GST paid or payable by the supplier in respect of the taxable supply.

Due date for consideration. The recipient must pay the GST to the supplier:-
- if there is a due date for the consideration for the taxable supply, on the same day as the due date for the consideration in respect of the relevant taxable supply; or
- if there is no due date, within seven (7) days of receiving a written request or a tax invoice from the supplier.
Obligation to reimburse. A party’s obligation to reimburse another party for an amount paid or payable to a third party (eg a party’s obligation to pay another party’s legal costs) includes GST on the amount paid or payable to the third party.

Issuing tax invoices. Each party making a taxable supply under this Agreement must issue a tax invoice to the other party for each taxable supply at or before the time it makes the taxable supply.

Adjustment note. Each party must issue an adjustment note to the other party as soon as it becomes aware of an adjustment event relating to a taxable supply under this Agreement.

Indemnity to pay GST. If a payment under an indemnity gives rise to a liability to pay GST, the payer must pay, and indemnify the payee against, the amount of that GST.

Indemnity for a cost. If a party has an indemnity for a cost on which that party must pay GST, the indemnity is for the cost plus all GST (except any GST for which that party can obtain an input tax credit).

Recovery of payment. A party may recover payment under an indemnity before it makes the payment in respect of which the indemnity is given.

SERVICES TERMS & CONDITIONS

These Services Terms & Conditions (“T&C”) apply to the provision of Services (“Services”) by Kettering.

Services

1.1 Work Order Required. Services shall be provided by Kettering to Customer in return for the agreed upon fee and on the basis of a Work Order that incorporates these T&C by reference. A Work Order is a document in which the Services are described in detail (including the pricing) and formally ordered from Kettering. Work Order and T&C are jointly referred to as the “Agreement”.

1.2 Cooperation. Customer shall provide Kettering with reliable information and access to all resources required by Kettering to be able to adequately fulfill its obligations. Kettering shall not be responsible for any issues with the Services that result from Customer not complying with these obligations.

Payment

2.1 Invoicing. Invoices for Services, provided on a time and materials basis, will be issued twice monthly in arrears. Invoices for Services, provided on a fixed price basis, will be issued in accordance with the schedule agreed upon in a Work Order. Invoices shall be due and payable within fourteen (14) calendar days from the date of the invoice. If Kettering does not receive timely payment, Kettering may suspend performance of Services. Kettering may assign the invoicing of payments due under this Agreement to a third party.

2.2 Expenses. Customer shall reimburse Kettering for documented and reasonable travel, administrative, and out-of-pocket expenses incurred in conjunction with the Services. Kettering’s standard policies concerning travel and living shall apply.

2.3 Interest. Any amounts due to Kettering under this Agreement which are not paid within the agreed payment term shall incur interest at the rate of one and one half percent (1¹/₂%) per month or any part of the month.

2.4 Taxes. Services fees are exclusive of all taxes, duties and fees. Customer shall make no deductions for taxes, duties or fees of any kind from any payment to Kettering under this Agreement. If Customer is required by law to withhold taxes, duties or fees, then Customer shall pay Kettering a gross amount of money, such that the net amount received by Kettering (after deducting or withholding the required taxes, duties or fees) is equal to the amount of the fee originally owed before subtracting such taxes, duties or fees. Taxes on the net income of Kettering are the responsibility of Kettering.

Confidentiality

3.1 Confidential Information. Each of the parties warrants that all of the information received by the other party which is known to be or should be known to be confidential in nature shall remain confidential, unless a legal obligation mandates disclosure of that information. The party receiving the confidential information shall only use it for the purpose for which it has been provided. Information shall in any event be considered confidential if it is designated by either of the parties as such.

Intellectual Property

4.1 Ownership of Work Product. If the performance of the Services results in the coming into existence of a work product that is based on an existing product (or on existing intellectual property rights, know-how, etc.) and that is eligible for independent intellectual property protection, then the party that owns the intellectual property rights to the existing product on which the work product is based will own the intellectual property rights to the work product. If the performance of the Services results in the coming into existence of a work product that is not based on an existing product, the intellectual property rights to such work product shall be owned by Kettering. If a party owns intellectual property rights that should be owned by the other party under operation of the above rules, then such party hereby assigns such rights to the other party.

4.2 Kettering Expertise. As part of the Services provided under the Agreement, Kettering may use its expertise to develop certain templates, business rules, and procedures. Kettering shall own and have exclusive rights in any such templates, business rules, and procedures.

4.3 Grant of License. Upon receipt of payment for the Services, Kettering hereby grants Customer a non-exclusive, nontransferable, perpetual and royalty-free license in accordance with the terms and conditions of the License and Maintenance Agreement to use the work products to which Kettering owns the intellectual property rights. License and Maintenance Agreement shall mean the agreement(s) under which Customer has licensed software and purchased maintenance for Kettering applications and related software from Kettering or its distributors. The terms and conditions of the License and Maintenance Agreement regarding the grant of a license are hereby incorporated by reference.

Limited Warranty

5.1 Professionalism. Kettering represents and warrants that the Services provided by Kettering hereunder shall be performed in a professional and workmanlike manner.

5.2 Original Work of Authorship. Kettering warrants that the work products developed by Kettering under this Agreement are an original work of authorship, and free and clear of all liens, encumbrances, and claims or demands of third parties.

5.3 Errors. Kettering warrants for a period of ninety (90) days from delivery that the work products provided as part of the Services shall be substantially free from material program errors and that they shall function substantially in accordance with the agreed upon specifications.

5.6 Warranty requirements. The warranty described above shall only apply providing:

– Customer provides written notice of the work product’s material program error(s) or defect(s) in material and workmanship in reasonable detail within the warranty period.

– Customer installs all releases and updates to the work products provided by Kettering which intend to fix errors or defects

– Customer installs and uses the latest version of all pre-requisite operating system and other software currently recommended by Kettering

– Customer has not modified the work products in any way (if Customer modifies the work products in any way, then the warranty only applies to the unmodified work products as delivered by Kettering.

– Customer uses the work products in accordance with the instructions or manuals.

5.7 Kettering’s contact details for claim. Customer may contact Kettering in relation to a claim under the warranty described above at Level 5, Toowong Tower, 9 Sherwood Road, Toowong, QLD, Australia; Email: admin@fkpservices,com.au; Telephone 07 3335 2600.

5.8 Refund of Fees. If Kettering determines that a material defect or error cannot be remedied in a reasonable time and on commercially reasonable terms, Kettering may terminate (part of) the affected Work Order and accept the return of the work products in exchange of a refund of the fees actually paid by Customer to Kettering for the affected item. This clause states the Customer’s exclusive remedy and Kettering’s entire liability for breach of warranty or any other duty related to the quality of the work products.

5.9 Third Party Products. Kettering makes no representations or warranties for Services that are performed with respect to defective third party products.

5.10 Limited Warranty. THE LIMITED WARRANTIES EXPRESSED IN THIS ARTICLE ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NO OTHER WARRANTY IS MADE HEREUNDER BY KETTERING AND ALL OTHER CONDITIONS, WARRANTIES, AND REPRESENTATIONS, EITHER EXPRESS OR IMPLIED, ARE EXCLUDED.

Guarantees

6.1 Guarantees. To the extent that the work products come with guarantees that cannot be excluded under any applicable Law or under these Services Terms & Conditions, the Customer is entitled to a replacement or refund for a major failure and compensation for any other forseeable loss or damage. The Customer is also entitled to have the work products repaired or replaced if the work products fail to be of acceptable quality and the failure does not amount to a major failure.

6.2 Extent of Liability. TO THE EXTENT THAT KETTERING’S LIABILITY FOR ANY GUARANTEE, TERM, CONDITION, WARRANTY OR REPRESENTATION CANNOT BE EXCLUDED UNDER ARTICLES 5.8, 5.10 OR 7.1 OR TO THE EXTENT THAT KETTERING’S LIABILITY CANNOT OTHERWISE BE LIMITED AS PROVIDED UNDER ARTICLE 7.2 KETTERING’S LIABILITY FOR A BREACH OF ANY GUARANTEE, TERM, CONDITION, WARRANTY OR REPRESENTATION IS LIMITED, AT THE OPTION OF KETTERING, TO:

IN RESPECT OF THE WORK PRODUCTS:
1. THE REPLACEMENT OR REPAIR OF THE WORK PRODUCTS;
2. THE SUPPLY OF EQUIVALENT WORK PRODUCTS; OR

THE COST OF REPLACING OR REPAIRING THE WORK PRODUCTS OR OF ACQUIRING EQUIVALENT WORK PRODUCTS.

IN RESPECT TO THE SERVICES:
1. THE SUPPLY OF THE SERVICES AGAIN; OR
2. THE PAYMENT OF THE COST OF HAVING THE SERVICES SUPPLIED AGAIN.

Limitation of Liability

7.1 Damages. TO THE MAXIMUM EXTENT PERMITTED BY THE APPLICABLE LAW, IN NO EVENT SHALL KETTERING BE LIABLE FOR ANY LOST REVENUES OR PROFITS OR

OTHER SPECIAL, INDIRECT, INCIDENTAL,
CONSEQUENTIAL OR PUNITIVE DAMAGES HOWEVER CAUSED AND REGARDLESS OF ANY THEORY OF LIABILITY, EVEN IF KETTERING HAS, OR SHOULD HAVE HAD, ANY KNOWLEDGE OF THE POSSIBILITY OF SUCH DAMAGES.

7.2 Damages Limitation. The maximum liability of Kettering for any and all damages arising out of, or in connection with, the Services shall be limited to the amount paid by Customer under the particular Work Order for the Services that caused the damage.

7.3 Personal Injury Liability. Nothing in this Agreement shall exclude or restrict the liability of Kettering for death or personal injury caused by the negligence of Kettering.

Term and Termination

8.1 Term. This Agreement shall be effective for the term outlined in the Work Order.

8.2 Termination. Either party may terminate the Agreement at any time upon thirty (30) calendar days written notice to the other party. If Customer terminates the Agreement for convenience or if Kettering terminates the Agreement for breach, Customer shall pay Kettering for all Services performed by Kettering, including any Services provided during the thirty (30) calendar days after written notice is provided to Kettering plus any fees/costs related to the inactivity of Kettering’s consultants devoted to the Services during such thirty (30) day period. If Kettering terminates the Agreement for breach, then any licenses to use the work product provided under the Agreement are terminated as well.

If Kettering terminates for convenience, then Customer shall have the option to either (i) receive a refund of all amounts paid to Kettering and terminate the license to use the resulting Services work product or (ii) receive from Kettering all Services done under the Agreement, whether complete or incomplete as of the date of termination, by payment to Kettering for such Services.

Miscellaneous

9.1 Law Applicable to this Agreement. This Agreement shall be subject to the laws of Queensland, Australia. Any dispute arising between the parties shall be settled by binding arbitration in accordance with the ACICA Arbitration Rules in Brisbane, Queensland before a single arbitrator selected under those Rules. The arbitral language shall be English. The arbitral award may be enforced in any court having jurisdiction thereof.

9.2 Assignment. Customer may not assign or transfer its interest in the Agreement to a third party.

9.3 Staff and Sub-Contracting. Kettering will, at its sole discretion, decide which staff is used to perform the Services. Kettering is entitled to subcontract the Services in whole or in part to third parties, provided that Kettering will continue to warrant the Services under this Agreement.

9.4 Personnel. Customer shall not knowingly solicit, with the intent to employ, any employee or contractor of Kettering during the term of this Agreement and for six (6) months after termination of this Agreement unless Customer pays to Kettering an amount equal to six (6) months of such employee’s or contractor’s current compensation.

9.5 Force Majeure. Except as it relates to Customer’s obligation to make payments, neither party shall be liable for delays or non-performance if such delays or non-performance are beyond such party’s reasonable control provided the party takes reasonable steps to remedy the delay or nonperformance promptly.

9.6 Compliance with Laws. Customer and Affiliate shall be responsible for complying with all applicable governmental regulations of Australia (including Australian export laws) and any foreign country (where applicable) with respect to the use of the Services. The Services are not to be used in any government and/or defense related activity unless approved under Australian Export Law and Regulation. Export/re-export of the Services may be contrary to Australian and other export laws. Customer and Affiliate shall defend, indemnify and hold Kettering harmless from and against any and all liabilities arising out of the non-compliance with applicable governmental regulations.

9.7 Survival. The clauses of this Agreement which are by their nature intended to survive the expiry or termination of this Agreement, including, but not limited to, Confidentiality, Intellectual Property, Limitation of Liability and Compliance with Laws, shall survive the expiry or termination of this Agreement.

9.8 Entire Agreement. This Agreement, including exhibits, annexes, attachments, Work Orders or amendments, which are incorporated herein by reference, contains the entire agreement between the parties with respect to the subject matter hereof and shall supersede any and all prior agreements and/or undertakings, either verbal or written, between the parties regarding the said subject matter. Any modification of any of the terms and provisions of this Agreement must be in the form of an amendment to this Agreement in writing and signed by the parties. Additional or different terms or conditions appearing on Customer’s purchase order shall be deemed null and void.

GST

10.1 Interpretation for the purposes of this Article. Words or phrases defined in the GST Law have the same meaning in this Article unless the context indicates otherwise. GST Law has the same meaning as “GST Law” has in A New Tax System (Goods and Services Tax) Act 1999 (Cth).

10.2 Recipient of taxable supply to pay GST. A recipient of a taxable supply made under this Agreement must pay to the supplier, in addition to the consideration for the taxable supply, any GST paid or payable by the supplier in respect of the taxable supply.

10.3 Due date for consideration. The recipient must pay the GST to the supplier:-

if there is a due date for the consideration for the taxable supply, on the same day as the due date for the consideration in respect of the relevant taxable supply; or
if there is no due date, within seven (7) days of receiving a written request or a tax invoice from the supplier.

10.4 Obligation to reimburse. A party’s obligation to reimburse another party for an amount paid or payable to a third party (eg a party’s obligation to pay another party’s legal costs) includes GST on the amount paid or payable to the third party.

10.5 Issuing tax invoices. Each party making a taxable supply under this Agreement must issue a tax invoice to the other party for each taxable supply at or before the time it makes the taxable supply.

10.6 Adjustment note. Each party must issue an adjustment note to the other party as soon as it becomes aware of an adjustment event relating to a taxable supply under this Agreement.

10.7 Indemnity to pay GST. If a payment under an indemnity gives rise to a liability to pay GST, the payer must pay, and indemnify the payee against, the amount of that GST.

10.8 Indemnity for a cost. If a party has an indemnity for a cost on which that party must pay GST, the indemnity is for the cost plus all GST (except any GST for which that party can obtain an input tax credit).

10.9 Recovery of payment. A party may recover payment under an indemnity before it makes the payment in respect of which the indemnity is given.

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