Janison Terms and Conditions Updated Jan 2013
Terms and Conditions 1. Interpretation 1.1. In this Agreement, unless otherwise indicated by the context (a) (b) (c) (d) (e) (f) (g) (h) (i) words importing the singular include the plural and vice versa; headings are for convenience only and do not affect interpretation of this Agreement; a reference to a clause, paragraph, annexure or schedule is a reference to a clause, paragraph, annexure or schedule of this Agreement; any reference to this Agreement includes any document attached to this Agreement as annexure, schedule or otherwise and such document are a part of this Agreement; where any word or phrase is given a definite meaning in this Agreement, any part of speech or other grammatical form of that word or phrase has a corresponding meaning; an expression importing a natural person includes a body corporate, partnership, joint venture, association or other legal entity; a reference to a statute, statutory provision or regulation includes all amendments, consolidations or replacements thereof; a reference to a party includes that party s legal personal representatives, successors and permitted assigns; a covenant or agreement on the part of or for the benefit of two or more persons binds or benefits them jointly and severally; Authorised Representative means the person authorised to represent a party and named in Schedule B. Acceptance Date has the meaning ascribed in clause 9.3. Client Data means any material provided by (Client) NSW to Janison for the purposes of this Agreement, including documents, equipment, reports, technical information, plans, charts, drawings, calculations, tables, schedules and data stored by any means. CPI means the Consumer Price Index (All Groups) Sydney. Janison Terms and Conditions 2
Completion Date means the date in clause 9.4 being the date on which Janison shall be taken to have performed its obligations under this Agreement and under the Project Schedule relating to a particular Project or Project Phase. Confidential Information has the meaning ascribed in clause 7.2. End Date means the date specified in Item 4 of Schedule A. Helpdesk Schedule has the meaning ascribed in clause 2.3. Helpdesk Services means any helpdesk services provided by Janison to the Client under this Agreement and in terms of a relevant Helpdesk Schedule. Hosting Schedule has the meaning ascribed in clause 2.3. Hosting Services means any hosting services provided by Janison to the Client under this Agreement and in terms of a relevant Hosting Schedule. Implementation Project means Client learning and training system implementation project. Implementation Phase means a stage during an Implementation Project designated as Project Phase in a relevant Implementation Project Schedule. Implementation Schedule has the meaning ascribed in clause 2.3. Implementation Services means learning management system implementation services provided by Janison to the Client under this Agreement and in terms of a relevant Implementation Schedule and includes customisation, development and training services. License means any license granted by Janison to the Client pursuant to/under this Agreement. License Schedule has the meaning ascribed in clause 2.3. Project Schedule has the meaning ascribed in clause 2.3. Project Services means any programming, analysis, course and any other content development services provided by Janison to the Client under this Agreement and in terms of a relevant Project Schedule. Schedule means Implementation Schedule, Helpdesk Schedule, Hosting Schedule, License Schedule, and/or Project Schedule. Service Level Agreement means the service level agreement which forms Schedule C to this Agreement. Janison Terms and Conditions 3
Statement of Work or SOW means the detailed statements of the work described in the Project Schedule, including any specifications or tasks Janison is required to perform. Statements of Work are incorporated into this Agreement, indirectly by reference or directly as an attachment Start Date means the date in Item 3 of Schedule A. Term means the term of this Agreement as set out in clause 3. 2. Work, Software, Services 2.1. The Client hereby appoints Janison to provide the Client with such learning and training system development, implementation, license, hosting and content development services generally and in respect of any Statement of Work that the Client undertakes during the Term. 2.2. Janison accepts its appointment in consideration for the Client undertakings in this Agreement. 2.3. Pursuant to and subject to this Agreement, the parties may from time to time during the Term agree the scope of work, timetable and consideration payable by the Client to Janison in respect of: (a) The provision by Janison to the Client of a learning management system Implementation Project and shall record that agreement in an Implementation Schedule substantially in the form of that annexed hereto and marked Annexure A. (b) The provision of Hosting Services by Janison to the Client and shall record that agreement in a Hosting Schedule substantially in the form of that annexed hereto and marked Annexure B. (c) The grant of any License by Janison to the Client and shall record that agreement in a License Schedule substantially in the form of that annexed hereto and marked Annexure C. (d) The provision of Helpdesk Services by Janison to the Client and shall record that agreement in a Helpdesk Schedule substantially in the form of that annexed hereto and marked Annexure D. (e) The provision of Project Services by Janison to the Client and shall record that agreement as separate Statement of Work (SOW) in a Project Schedule substantially in the form of that annexed hereto and marked Annexure E. 2.4. Janison undertakes to perform its obligations under this Agreement professionally and in alignment with industry standards current at the time of performance, to employ appropriately trained personnel, not to breach any intellectual property Janison Terms and Conditions 4
rights and at all times to comply with any applicable laws, regulations and standards and in accordance with the Service Level Agreement. 3. Agreement, Licence and Hosting Services Term 3.1. This Agreement shall commence on the Start Date and shall continue in force until the End Date. 3.2. All and any periodic Hosting Services and Helpdesk Services and Licenses shall renew without further notice during the Term of the Agreement. 3.3. After the End Date, the agreement will continue to automatically renew for 12 month periods ( Further Term ) unless the Client provides written notice at least one month before expiry of any then current Hosting/Helpdesk Service or License. 3.4. On renewal of any Hosting/Helpdesk Service or License, the consideration for such renewed Hosting/Helpdesk Service or License may be reviewed and in that case shall be increased for CPI for the period starting on the relevant Hosting/ Helpdesk Service or License start date/any previous review date (as the case may be) and ending on the renewal date. 3.5. For the avoidance of doubt, all prices are to remain in effect for the duration of this Agreement and any subsequent extensions of this Agreement. 4. Consideration and Payment 4.1. The Client shall pay to Janison in the manner as Janison may direct from time to time, the amounts as set out in clause 4.2 at the times as set out in clause 4.3. 4.2. The amounts payable by the Client to Janison under this Agreement are as follows in respect of: (a) Implementation Services, the amount in the relevant Implementation Schedule. (b) Hosting Services, the amount in the relevant Hosting Schedule. (c) Licenses, the amount in the relevant License Schedule. (d) Helpdesk Services, the amount in the relevant Helpdesk Schedule. (e) Project Services, the amount in the relevant Statement of Work in the Project Schedule. 4.3. The amounts in 4.2 are payable as follows: (a) The amount in 4.2(a) within 30 days from end of month of receipt of invoice after the Completion Date of each milestone. (b) The amount in 4.2(b) quarterly in arrears. Janison Terms and Conditions 5
(c) The amount in 4.2(c) yearly in advance. (d) The amount in 4.2(d) quarterly in advance. (e) The amount in 4.2(e) as specified in the relevant Statement of Work. 4.4. If Janison undertakes any obligation as a consequence of any variation requested by the Client to any schedule after a Schedule has been agreed, the Client shall reimburse and pay to Janison an additional amount for undertaking and carrying out that obligation, such additional amount to be calculated by Janison based on the applicable rate as specified in the relevant Schedule. Any and all additional chargeable work to be carried out by Janison will be only commenced after a formal quotation detailing the services and expected delivery is provided and formally approved by the Client prior to the commencement of the work. 4.5. All payments under this Agreement shall be made in Australian Dollars (AUD). 5. Goods and Services Tax 5.1. The consideration under this Agreement has been determined without reference to and excludes goods and services tax ( GST ). If any supply by Janison to the Client under this Agreement is a taxable supply, then the consideration for that supply shall be increased by the amount of GST payable. 5.2. In this clause the terms consideration, supply and taxable supply have the meaning given to them by A New Tax System (Goods and Services Tax) Act 1999. 6. Rights in Data and Inventions 6.1 Save to the extent specifically provided for otherwise in this Agreement, any products, programs, services, components and property, including but not limited to intellectual property developed solely by Janison for Janison products shall be and remain the exclusive property of Janison and any use of such property by the Client shall be subject to the terms of this Agreement or other applicable license agreement. 6.2 All products, programs, services, components and data created particularly for use with any Statement of Work shall, upon full payment by the Client for a particular Statement of Work, become the property of the Client, with full right, title and interest to use the same without obligation or accounting to Janison except as otherwise specifically agreed. 6.3 All rights, including any copyright, rights to trademarks, patents, design and any rights protecting Janison s ownership to any intellectual property not expressly granted herein are reserved by Janison. Janison Terms and Conditions 6
6.4 Any content, course material, documents, graphics or web pages developed by the Client using Janison software or placed by the Client on servers hosted by Janison remains the property of the Client and for their exclusive use. 7. Confidential and Proprietary Information 7.1 The parties acknowledge that for the purpose of performing this Agreement, it may be necessary for the parties to exchange Confidential Information. 7.2 In this Agreement Confidential Information means all technical and business information, client data and services, software products, related documentation and training materials, research and development information, manuals, notes, products, know-how, trade secrets, specifications, codes, processes and formulae, planning and marketing procedures, techniques and information, accounting procedures and financial information that one party discloses to the other, except such information which: (a) was lawfully in the receiving party s possession, prior to disclosure under this Agreement; (b) is or after disclosure becomes available in the public domain through no act or omission of the receiving party; (c) is disclosed to the receiving party by a third party having no obligation of confidentiality with respect thereto; (d) is independently developed by the receiving party. 7.3 Each party reserves all rights and interests in its Confidential Information. 7.4 In consideration for the disclosure of Confidential Information by the disclosing party, the receiving party shall use reasonable means to: (e) restrict use of, and access to, such Confidential Information to the receiving party s employees and any other of its duly authorised agents on a need-toknow basis only; (f) take appropriate action, by instruction, agreement, or otherwise, to advise those employees and agents who receive such information of its confidential and proprietary nature; (g) prevent disclosure or reproduction of, or access to, such information to, or by, any third party; Janison Terms and Conditions 7
(h) use such information only for the purpose for which it was supplied unless permission in writing has first been obtained from the disclosing party for any other use; and (i) reproduce such information only as necessary for the receiving party s authorised use. 7.5 The receiving party shall return all Confidential Information, including any sole or partial copies thereof, immediately upon written demand by the disclosing party and in any event on the End Date or the date of termination of this Agreement pursuant to clause 17 or otherwise. 8. Force Majeure 8.1 Except for failure to perform the parties respective obligations in accordance with Clauses 6, 7 and 8, in the event either party is prevented from performing this Agreement due to any cause beyond its reasonable control, including but not limited to, strike, work stoppage, power disruptions, telecommunications disruptions, war or acts of God, and such cause has continued for a period of more than three (3) consecutive months, either party may terminate this Agreement by giving written notice to the other party. In the event of any such termination, the Client shall pay Janison for work performed up to the date of termination. 9. Notification of Faults 9.1 Any Project Services shall be subject to reasonable Client inspection from time to time. 9.2 The Client shall notify Janison in writing of any defect or non-compliance and Janison shall correct the reported defect or non-compliance and resubmit the services or product to the Client in accordance with the requirements set out in Schedule C, Service Level Agreement, Service Level Definitions and Response Times. 9.3 Any Project and Project Phase (as the case may be) shall be subject to final inspection and acceptance by the Client within thirty (30) business days ( Acceptance Date ) of notice by Janison of final delivery of the Project or Project Phase. Any changes to the system regarded as upgrades, bug fixes or formal change requests will also be fall under the same approval for acceptance 9.4 Janison shall be taken to have performed its obligations under this Agreement and under the Project Schedule relating to a particular Project or Project Phase on the Acceptance Date of that Project or Project Phase ( Completion Date ). Janison Terms and Conditions 8
9.5 In performing any inspection under this clause 9, the Client must use reasonable endeavours not to cause delay to Janison in performing its obligations under this Agreement and the relevant Project Schedule. 10. Relationship 10.1 Nothing in this Agreement shall be constructed to create or imply that either party is an agent, employee or partner of the other party. A party shall not make any commitments or incur any expenses for, or in the name of, the other party without the prior approval of the other party. 11. Limitation of Liability 11.1. To the extent permitted by law, the Client s sole and exclusive remedy for any breach of obligation by Janison under this Agreement or a Project Schedule shall be to demand that Janison remedies that breach to the extent that it can so be remedied by: (a) if the breach relates to goods: (i) (ii) (iii) (iv) the replacement of the goods or the supply of equivalent goods; or the repair of such goods; or the payment of the cost of replacing the goods or of acquiring equivalent goods; or the payment of the cost of having the goods repaired; and (b) if the breach relates to services: (i) (ii) the supplying of the services again; or the payment of the cost of having the services supplied again. 11.2. On receipt of demand under clause 11.1 Janison may elect in its entire discretion to undertake any one, all or a combination of the remedial steps in 11.1(a) and/or 11.1(b), as the case may be. 11.3. The limitation of liability set out in clause 11.1 does not apply to any third party claims against the Client arising from this Agreement for infringement of a third party s intellectual property rights, damage to property, personal injury or death. 12. Governing Law 12.1 This Agreement shall be governed and construed in accordance with the laws in force in the State of New South Wales, Australia and the parties agree to submit to the non-exclusive jurisdiction of the courts of that jurisdiction. Janison Terms and Conditions 9
13. Address for Notices 13.1 Notices may be in the form of electronic mail, facsimile or written letter. The contact information for service of notices of each party to this Agreement is as set out in Schedule A. 14. Variations 14.1 Subject to clause 4.4, if either party wishes to vary any aspect of this Agreement or of any Project Schedule, such variation may only occur with the written agreement of both parties. Any request to vary this Agreement or a Project Schedule shall be in writing and shall not be binding upon the parties until either: (a) it is signed by an Authorised Representative of each party and copies provided to both parties; or (b) an email is received from an Authorised Representative of the other party setting out the variation and a return confirmation of the variation is sent by the receiving party s Authorised Representative. 14.2 Any variation request shall contain the following information: (a) a description of that part of the Work, Software and/or Services to be varied; (b) the timetable change for that part of the Work, Software and/or Services to be varied; (c) the amount, if any, payable by the Client to Janison in respect of the variation or the amount by which the payments due to Janison are to be reduced. This is to be based on the fees itemised in the applicable Project Schedule. 15. DOCUMENTARY PRIORITY In the interpretation of this Agreement, where any provision conflicts with a provision of a document, including a Project Schedule, this Agreement prevails. 16. TERMINATION AND OBLIGATIONS ON TERMINATION 16.1 This Agreement may be terminated immediately by either party on written notice to the other party if: (a) the other party commits a material breach of a condition of this Agreement; (b) the other party becomes bankrupt or if it is a company goes into any form of liquidation, has a receiver, manager or administrator appointed, enters into a scheme of arrangement or composition with creditors or is unable to pay debts when they fall due or threatens to stop any payment due. Janison Terms and Conditions 10
16.2 On the End Date or date of termination of this Agreement pursuant to this clause, each party shall not retain and will return to the other all and any Confidential Information for which the other has not been granted a separate licence for continued use; and any tangible materials and property that belongs to the other party which has not been purchased as part of this Agreement or a Project Schedule. 17 Data Protection Client Data is and will remain the property of the Client at all times. Except as required by law, Janison must: (a) (b) (c) (d) not use Client Data for any purpose other than directly in relation to the performance of its obligations under this Agreement and any Contract; not, and must ensure that its personnel do not, sell, commercially exploit, let for hire, assign rights in or otherwise dispose of any Client Data; not make any Client Data available to a third party other than an approved subcontractor and then only to the extent necessary to enable the approved subcontractor to perform its part of Janison s obligations under this Agreement; and not remove or transfer Client Data to any non-client premises or systems without obtaining the prior approval of the Client. Janison must establish and maintain safeguards against the destruction, loss or alteration of Client Data in the possession or control of Janison that: (a) (b) (c) are consistent with and no less rigorous than those maintained by the Client to secure that data; and comply with all applicable laws and any procedures specified by the Client in writing Janison must return Client Data to the Client immediately on termination or expiration of this Agreement or on request by the Client at any time. This excludes backed-up archived data. 18 General 18.1 Janison agrees not to use, in advertising, publicity or otherwise, any trademark, logo or official crest of the Client without prior written permission. 18.2 The Client agrees not to use, in advertising, publicity or otherwise, the Janison name or trademark without prior written permission. Janison Terms and Conditions 11
18.3 No delay or failure of either party in exercising any right and no partial or single exercise of any right shall be deemed to constitute a waiver of that right or any other rights under this Agreement. 18.4 If any provision, or portion thereof, of this Agreement is invalid or unenforceable under any applicable statute or rule of law, it is to that extent to be deemed omitted. 18.5 The Client has the right to arrange, at the mutual convenience of both parties, an audit of the compliance of systems with security implementation standards (AS/NZS ISO 17799). Compliance checking, if undertaken, would be by a qualified technical specialist and in a way that minimises the disruption to business processes consistent with AS/NZS ISO 17799 clauses 12.2 and 12.3. This will be at the client s cost. 18.6 This Agreement constitutes the entirety of the agreement between the parties and the parties acknowledge that except as specifically set out herein neither party has or does rely upon any representation made, in any way, by the other party, in entering into this Agreement. Janison Terms and Conditions 12