TERMS AND CONDITIONS .

INTRODUCTION

These are the standard terms and conditions for the supply of Services offered from time to time by Blaque Digital Pty Ltd . These terms apply to you as a user of the Services (“Client”).

1. These are the terms upon which Blaque Digital agrees to provide Services to the Client.
2. The agreement made between us on these terms commences on the date of acceptance under clause 5 and will continue until terminated in accordance with these terms.
3. Blaque Digital may vary these terms at any time by publishing a new terms and conditions document on the www.blaquedigital.com.au website.

1. DEFINITIONS

1.1 Acceptance Timeframe means ten (10) days from the date that Blaque Digital notifies the Client that the Deliverables are available.

1.2 Authorised Representative is an Employee of the Client who is authorised by the Client to work with Blaque Digital to help deliver the Services.

1.3 Business Day means any day other than a Saturday or Sunday or any public holiday gazetted by the Parliament of Queensland for Brisbane.

1.4 Business Rule means a definition or constraint to some aspect of a business process or system. The rationale behind the rule can be driven by factors that are commercial, security or compliance in nature.

1.5 Confidential Information means:

1. this agreement, deeds of variation or associated Service Requests;
2. Documentation; and
3. information relating to the business and financial affairs of the parties; but excludes information that:
4. is already in the public domain;
5. subsequently becomes part of the public domain other than as a result of an unauthorised disclosure by the receiving party or its representatives;
6. is or becomes available to the receiving party from a third party who is legally entitled to possess and provide the information to the receiving party;
7. the receiving party is legally entitled to know (as shown by appropriate records) prior to the date of disclosure by the disclosing party under this Agreement; and
8. is independently developed by an employee of the receiving party (as shown by the appropriate records) who has no knowledge of the disclosure by the disclosing party under this Agreement.

1.6 Deliverables means Documentation, Services or Software as specified in a Service Request.

1.7 Documentation includes:

1. business analysis, project plans and budgets;
2. requirement, functional and technical specifications;
3. test plans and training documentation;
4. database and class designs; and
5. system and network architecture diagrams.

1.8 Employees means a party’s bona fide employees, officers, directors or contractors.

1.9 Extended Office Hours means 6 a.m. to 8 a.m. and 5 p.m. to 9 p.m. on a Business Day.

1.10 Fees means the fees specified in a Service Request.

1.11 Intellectual Property Rights means all industrial and intellectual property rights throughout the world protected by statute or common law including all current and future registered and unregistered rights (whether or not registrable) relating to:

1. trade marks, business names and domain names, copyright works, circuit layouts, designs, patents, know-how, inventions and discoveries, and all other intellectual property as defined in article 2 of the convention establishing the World Intellectual Property Organisation 1967; and
2. any application or right to apply for the registration of any of the rights referred to in paragraph (a) above.

1.12 Project Stages mean the stages specified in a Service Request for interim and final completion of the Services.

1.13 Rate Card means the schedule of rates attached to this agreement.

1.14 Retainer Rate means the discounted Rate Card rates chargeable by Blaque Digital for work carried out during Standard Office Hours under a current Retainer Agreement.

1.15 Service Request includes:

1. Agreed Quotation, which means an email or other written communication from an Authorised Representative indicating acceptance of a quote for Deliverables provided by Blaque Digital, where that quote is for up to 40 hours’ work;
2. Minor Work Request, which means an email or other written communication from an Authorised Representative instructing Blaque Digital to undertake Deliverables work estimated to be up to eight hours’ duration;
3. Retainer Agreement, which means a written and signed agreement between the parties which sets out a minimum monthly spend for Services; and
4. Work Order, which means a written and signed agreement between the parties that defines the cost, Deliverables and specific conditions of a project, and which includes a Work Order number.

1.16 Services means the work that Blaque Digital agrees to carry out for the Client, as defined in a Service Request.

1.17 Software means application, website or other code defined by the Specifications and provided by Blaque Digital l to the Client under the Services.

1.18 Specifications means the functional requirements description of the project that is the subject of a Service Request.

1.19 Standard Rate means the non-discounted Rate Card rates chargeable by Blaque Digital for work carried out during Standard Office Hours.

1.20 Standard Office Hours means 8 a.m. to 5 p.m. on a Business Day.

2. SERVICES

2.1 Request for services

1. The Client agrees to nominate at least one Employee as Authorised Representative responsible for giving Blaque Digital:
   
   1. all necessary data and documentation;
   2. clear user requirements, specifications, timelines and tasks for completion; and
   3. timely approval of Service Requests, user acceptance testing and Documentation.
2. The Client agrees that work may immediately commence, and fees accrue on Services requested of Blaque Digital, upon receipt of a valid Service Request.

2.2 Excluded tasks

1. The Services do not include tasks referred to in a Service Request as Excluded Tasks.
2. If Blaque Digital undertakes Excluded Tasks or other work not described in a Service Request at the request of the Client, Blaque Digital may invoice the Client for the additional Services.

2.3 Delivery

1. Upon receipt of a valid Service Request, Blaque Digital shall provide Services to the Client in a prompt and professional manner using suitably trained and experienced personnel.
2. Blaque Digital may appoint or engage subcontractors to perform all or part of the Services, provided that such appointments do not diminish, prejudice or otherwise adversely affect the performance of Blaque Digital’s obligations under this Agreement.
3. The Deliverables will meet the Specifications, subject to the Client meeting all Client Obligations and any changes authorised by the Client and accepted by Blaque Digital.
4. Blaque Digital will use best efforts to adhere to the Project Stages. If any stage of the project cannot reasonably be completed by an agreed date, Blaque Digital will determine in consultation with the Client, a revised date for completion.
5. Following acceptance by the Client of the Deliverables, Blaque Digital will not be required to correct errors or defects in the Deliverables, or in any other respect maintain or support them, subject to:
   
   1. the warranty in Clause 3 of this agreement;
   2. as required by statutory warranty; or
   3. any provision in a Service Request.

2.4 Installation and hosting

1. Installation of Deliverables will be in accordance with the responsibilities set out in a Service Request.
2. If the Client elects to have Blaque Digital install the Deliverables, the Client must give Blaque Digital such reasonable assistance (including the provision of personnel and facilities) as it may reasonably request.
3. If the Client does not elect to have Blaque Digital install the Deliverables, the Client is then responsible for installation.
4. Unless otherwise agreed in writing, the Client is solely responsible for hosting and operating the Software, and must bear all associated costs, including acquisition of licences necessary to run the Software on the Client’s equipment or a third party location.

3. WARRANTY

3.1 The Deliverables are warranted against defects in workmanship or materials for a period of ninety (90) days from the expiration of the Acceptance Timeframe.

3.2 Blaque Digital’s responsibility under this warranty shall be either to repair or replace, at Blaque Digital’s option and during Blaque Digital’s normal working hours and in accordance with Blaque Digital’s development schedule, any component of the Deliverables which fails to function according to the Specifications.

3.3 If Blaque Digital reasonably determines that the Deliverable component is not defective within the terms of this warranty, the Client shall pay Blaque Digital on a time and materials basis for the investigation and action.

4. FEES

4.1 In return for the Services, the Client must pay Fees to Blaque Digital.

4.2 Rates

1. Fees are calculated in accordance with the Rate Card. The Rate Card is current for at least 12 months from the date of this Agreement.
2. If the Client has a current Retainer Agreement in place with Blaque Digital, the Retainer Rates apply, provided the Client is not in breach is this Agreement.
3. Blaque Digital must notify the Client at least 30 days in advance of any scheduled rate rise. Fixed price quotations accepted by the Client before a rate rise takes effect will not be affected by the scheduled rise.
4. The following loadings apply to Standard Rates and Retainer Rates where the Client specifically requests Services to be performed outside Standard Office Hours:
   
   1. during Extended Office Hours: 50%
   2. outside Extended Office Hours: 100%

4.3 Invoices

1. The Client will pay all invoices validly issued by Blaque Digital within 14 days of issue.
2. The Client agrees that any Authorised Representative who requests Services under clause 2.1will also take responsibility for ensuring that validly prepared invoices are approved in a timely manner such that payment is not delayed past the agreed terms.
3. The Client acknowledges that payment to Blaque Digital is not dependent on payment being made to the Client by other parties. That is, the Client acknowledges that it is solely responsible for any payment due to Blaque Digital.
4. The Client may withhold payment of an item in an invoice if it has a bona fide query, until such time as the query has been resolved to the Client’s reasonable satisfaction.
5. If the Client fails to pay a validly issued invoice from Blaque Digital within 30 days of issue:
   
   1. the Client must pay late fees at a rate of 2% per month calculated daily and compounded monthly on any money that the Client owes Blaque Digital but does not pay on time;
   2. the late fee is payable on the amount outstanding from the day payment was due until it is paid;
   3. the Client will be liable for reasonable collection fees incurred by Blaque Digital in efforts to recover payment; and
   4. Blaque Digital may suspend provision of Services to the Client without notice until all outstanding payments are received.

5. INTELLECTUAL PROPERTY

5.1 Assignment to Client

1. Subject to the other terms of this clause 5, Blaque Digital agrees to transfer and assign to the Client all Intellectual Property (“IP”) Rights in original work that is specific to the unique Business Rules of the Client.
2. Assignment of Intellectual Property Rights will not occur until full and final payment of all Fees for Service Requests relating to that work have been received by Blaque Digital.

5.2 Licence to Client

1. In relation to pre-existing work incorporated into the Deliverables, Blaque Digital agrees to grant to the Client a non-exclusive, royalty-free, perpetual licence to use that pre-existing IP within the Deliverables.
2. Granting of the licence will not occur until full and final payment of all Fees for Service Requests relating to that work have been received by Blaque Digital.

5.3 Licence back to Blaque Digital

For any IP rights assigned by Blaque Digital to the Client under this agreement, the Client grants to Blaque Digital a non-exclusive, royalty-free, perpetual licence to use the original programming code or scripts or systems developed by Blaque Digital, in any way Blaque Digital chooses, without limitation.

5.4 Third party IP

The Client acknowledges that Blaque Digital does not have the ability to assign any third party IP used in the Deliverables, such as stock photography and third party code.

5.5 Indemnity

1. The Client agrees to indemnify Blaque Digital against all actions, claims, losses and damages (direct or indirect) arising from or incidental to the electronic publication of material supplied by the Client and used in the Deliverables.
2. Subject to the other terms of this clause 5.5, Blaque Digital agrees to indemnify the Client against liability under any final judgment in proceedings brought by a third party against the Client which determine that the Client’s use of the Deliverables constitutes an infringement of Australian Intellectual Property Rights.
3. Blaque Digital will not indemnify the Client as provided in paragraph 5.5 (b) unless the Client:
   
   1. notifies Blaque Digital in writing as soon as practicable of any infringement, suspected infringement or alleged infringement;
   2. permits Blaque Digital to modify, alter or substitute the infringing part of the Agreement Deliverables, at Blaque Digital’s expense, to render the Agreement Deliverables non-infringing;
   3. gives Blaque Digital the option to conduct the defence of such a claim, including negotiations for settlement or compromise prior to the institution of legal proceedings;
   4. provides Blaque Digital with reasonable assistance in conducting the defence of such a claim; and
   5. authorises Blaque Digital to procure for the Client the authority to continue the use and possession of the Agreement Deliverables.
4. Blaque Digital will not indemnify the Client as provided in paragraph 5.5 (b) if the infringement arises from the Client’s:
   
   1. use of the Deliverables in combination by any means and in any form with other software not specifically approved by Blaque Digital in writing;
   2. use of the Deliverables in manner or for a purpose not reasonably contemplated or authorised by Blaque Digital in writing; or
   3. modification or alteration of the Deliverables or any transaction entered into by the Client relating to the Deliverables without Blaque Digital’s prior written consent.
5. The Client agrees to indemnify Blaque Digital against any loss, costs, expenses, demands or liability, whether direct or indirect, arising out of a claim by a third party alleging such infringement if:
   
   1. the claim arises from an event specified in paragraph 5.5 (d); or
   2. Blaque Digital’s ability to defend the claim has been prejudiced by the failure of the Client to comply with the provisions of paragraphs 5.5 (c) or 5.5 (d).

6. CONFIDENTIALITY

6.1 Obligation to keep confidential

Each party agrees to take all reasonable steps to protect Confidential Information of the other party in its possession from disclosure to third parties, unless such disclosure:

1. has the prior written consent of the other party;
2. is required by law; or
3. is for the purpose of obtaining legal, tax, accounting or other similar professional advice in relation to this Agreement.

6.2 Employee confidentiality

1. Confidential Information must not be disclosed to any person other than each party’s Employees insofar as such disclosure is required for the party to perform its obligations or exercise its rights under this Agreement.
2. Each party must take reasonable steps to ensure its Employees comply with the confidentiality obligations contained in this clause.
3. Subject to clause 7, the parties acknowledge that each is liable for any breach by its Employees of the obligations contained in this clause as if the breach were a breach by the party.

7. LIABILITY

7.1 Blaque Digital makes no warranties other than those expressly set out in this Agreement, and excludes to the fullest extent permitted by law all other warranties, conditions and terms implied by statute, general law or custom.

7.2 Blaque Digital’s liability to the Client is limited at Blaque Digital’s option to the repair or re-supply of the Deliverables or payment of the cost of repairing or re-supplying the Deliverables.

7.3 Blaque Digital is not liable to the Client for consequential or indirect damages including loss of data, profit, business, revenue, anticipated savings or goodwill or for claims by third parties, whether or not such damages were foreseeable or contemplated.

8. NON-SOLICITATION

8.1 Subject to the laws in force for the time being relating to the validity of restrictive covenants:

1. Blaque Digital shall not solicit for employment, whether directly or indirectly, or otherwise employ, engage or contract from the date of this Agreement until the expiration of six months after the termination of this Agreement, any person who is employed or contracted by the Client during the term of this Agreement; and
2. The Client shall not solicit for employment, whether directly or indirectly, or otherwise employ, engage or contract from the date of this Agreement until the expiration of six months after the termination of this Agreement, any person who is employed or contracted by Blaque Digital during the term of this Agreement.

8.2 If either party seeks to employ or contract an Employee of the other party prior to the expiration of six months after the termination of this Agreement, the first party must receive the consent of the other party to employ or contract that Employee.

9. SUSPENSION AND TERMINATION

9.1 Suspension

Blaque Digital may suspend the provision of Services to the Client indefinitely and without notice if the Client breaches any provision of this Agreement.

9.2 Termination

1. Either party may terminate this Agreement by giving the other party 30 days’ notice in writing. Fees paid to Blaque Digital under this Agreement prior to termination under this Agreement are non-refundable.
2. Either party may terminate this Agreement with immediate effect by giving written notice to the other party if:
   
   1. the other party breaches any provision of this Agreement and, if such breach is remediable, fails to remedy such breach within 14 days of receiving written notice requiring it to do so;
   2. the other party ceases to carry on business;
   3. any step is taken to enter into any scheme of arrangement between the other party and its creditors;
   4. any step is taken by a mortgagee to enter into possession or dispose of the whole or any part of the other party’s assets or business;
   5. any step is taken to appoint a receiver, a receiver and manager, an official manager, a liquidator, a provisional liquidator, an administrator or other like person of the whole or any part of the other party’s assets, undertaking or business;
   6. the other party disposes of the whole or any part of its assets, operations or business other than in the normal course of business; or
   7. the other party becomes insolvent or is otherwise unable to pay its debts as and when they become due.
3. Termination of this Agreement does not affect any accrued rights or remedies a party may have.
4. On termination of this Agreement for any reason:
   
   1. Blaque Digital must, if requested by the Client and if the Client has paid all outstanding invoices, immediately deliver to the Client all Confidential Information, documents or property of the Client in its possession; and
   2. The Client must pay Blaque Digital for work done up until the date of termination.

10. OTHER PROVISIONSa

10.1 Governing Law, Entire Agreement and Waiver

This agreement:

1. is governed by the laws of Queensland and the Commonwealth of Australia (as applicable);
2. constitutes the entire Agreement of the parties about its subject matter and supersedes any previous understandings or agreements on that subject matter;
3. may not be varied or waived except in writing signed by the parties and such waiver or variation is without prejudice to the party’s rights in relation to any subsequent breach.

10.2 Prevailing Agreement

In case of inconsistency between the terms of a Service Request and this MSA, the terms of the Service Request shall prevail.

10.3 Full Effect

Each party must, at its own expense, do everything reasonably necessary to give full effect to this Agreement.

10.4 Credit Reporting

The Client authorises Blaque Digital to obtain from and give to credit reporting agencies and other credit providers certain information about the Client so that Blaque Digital may manage the Client’s account. This information may include details such as name, address, date of birth, company details and address, credit history and creditworthiness, credit standing with us and credit capacity. Blaque Digital reserves the right to refuse your application for, monitor ongoing usage of, or restrict access to the Services on the basis of our assessment of credit information relating to the Client. The Client is entitled to see but must first provide evidence that warrants a correction in any errors in the credit information Blaque Digital holds about the Client.

10.5 Assignment

Neither Blaque Digital nor the Client may assign its rights and obligations under this Agreement without the consent of the other party. Such consent may not be unreasonably withheld.

10.6 Contractor

The parties acknowledge and agree that Blaque Digital’s relationship with the Client is that of independent contractor, and that neither party is an employee, partner, agent, joint venturer or representative of the other.

10.7 Force Majeure

A party is not in breach of this Agreement nor liable to the other party for a delay or failure to perform an obligation (other than an obligation to pay money) resulting from events or circumstances beyond the party’s reasonable control.

10.8 Currency and GST

Unless stated otherwise in a Service Request, all references to currency are to Australian currency and are exclusive of GST.

10.9 Severability

Any part of this Agreement that is prohibited by or rendered unlawful or unenforceable under any law actually applied by a court of competent jurisdiction is severed from this Agreement and, to the extent possible, without modification to the remaining provisions of this Agreement which will continue to operate.

10.10 Survival

The Confidentiality and Intellectual Property clauses of this Agreement will survive its termination.