Customer Contract

1. Background
1. DigiDevs is involved in providing the Goods and Services described in the Customer Order and the Statement of Works.
2. The Customer has engaged DigiDevs to provide the Goods and Services to it in accordance with the terms and conditions set out in this Agreement.
3. By completing the Customer Order, the Customer accepts this engagement on the terms and conditions set out in this Agreement.
2. Definitions and Interpretation
1. The following definitions apply to this Agreement:
1. Agreement:  means:
1. this Customer Contract (Terms and Conditions) inclusive of the Customer Order;
2. the Statement of Works referred to the Customer Order;
3. any attachments; and
4. any other document that is expressly incorporated by way of reference.
2. Approved Amount:  for Approved Expenses means the monetary amount described in Item 9 of the Customer Order which DigiDevs may spend on individual purchase transactions that are necessary for the delivering the Goods and Services without obtaining approval. 
3. Approved Expenses: means approved expenses included in Item 8 of the Customer Order or otherwise authorised under clause 8.2.
4. Australian Consumer Law: has the meaning given to it under the Competition and Consumer Act 2010 (Cth) as implemented under the Fair Trading Act 1989 (Qld).
5. Business Day: means any day that is not a Saturday, Sunday or public holiday in Brisbane, Queensland or in the city or suburb where the Goods and Services are to be supplied.
6. Claim:  includes any claim, action, demand, application, proceeding, judgment, enforcement hearing and enforcement order.
7. Commencement Date:  means the commencement date in the Customer Order.
8. Completion Date:  means:
1. the completion date in the Customer Order; or
2. if the Agreement becomes periodic, the date on which the periodic term is terminated in accordance with clause 19.1(e). 
9. Confidential Information: means any information which by its nature is confidential, is received on the express or implied understanding that it is confidential, or is marked as being confidential, and may include:
1. information about processes and policies, commercial operations, financial arrangements or affairs;
2. the terms of this Agreement;
3. Records,

but does not include:

4. information that is publicly known for reasons other than as a result of a breach of this Agreement; or
5. any other information that is received through a third party and which is not governed by an obligation of confidence.
9. Contact Person: means the Customer’s nominated representative as described in the Customer Order.
10. CPI:  means the Consumer Price Index for All Groups (Brisbane) as published by the Australian Bureau of Statistics.
11. Current CPI:  means for the Review Date, the CPI for the last quarter ending before the Review Date.
12. Customer:  means the Customer as described in the Customer Order and as the context requires, includes any employee, officer, agent, contractor or sub-contractor of the Customer.
13. Existing Material:  means any material which contains Intellectual Property Rights in existence before the Commencement Date.
14. Force Majeure Event: means any event beyond the reasonable control of the affected party which:
4. adversely affects that party’s ability to meet any obligation under this Agreement; and 
5. could not be mitigated or prevented by reasonable due diligence or precautionary measures adopted by the affected party,

and may include natural disasters or acts or god, health pandemics, acts of terrorism, deliberate vandalism, riots, civil disturbance, industrial disputes and strikes (other than strikes involving the affected party or its employees, officers, agents, contractors or sub-contractors).

16. Goods:  means goods sold by DigiDevs to the Customer under this Agreement.
17. GST:  means goods and services tax imposed through GST Law.
18. GST Law:  means A New Tax System (Goods and Services Tax) Act 1999 (Cth), any regulations passed under this Act, or any statutory instrument amending, consolidating or replacing it.
19. DigiDevs:  has the meaning given to it in the Customer Order and as the context requires, includes any employee, officer, agent, contractor or sub-contractor of DigiDevs.
20. Intellectual Property Rights: means all registered and unregistered rights in Australia and throughout the world for:
1. copyright;
2. trade marks or service marks; 
3. designs;
4. patents;
5. semiconductors or circuit layouts;
6. source codes and object codes;
7. trade, business or company names;
8. indications of source or appellations of origin;
9. trade secrets;
10. know-how and confidential information;
11. the rights to registration of any of the above; and 
12. the right to bring an action for infringement of any of the above;

but excludes Moral Rights.

21. Key Person: means the nominated representative for DigiDevs as described in the Customer Order.
22. Loss: includes (and is not limited to) any loss, liability, tax, prohibition, penalty, fine or expense.
23. Mediation and Conciliation Rules:  means the rules for mediation and conciliation as published by Institute of Arbitrators & Mediators Australia at https://www.iama.org.au/resources/rules-guidelines/mediation-and-conciliation (as amended from time to time).
24. Moral Rights: means the moral rights conferred under the Copyright Act 1968 (Cth), including the right of integrity of authorship, the right of attribution of authorship and the right not to have authorship falsely attributed;
25. New Material:  means Intellectual Property Rights any material that come into existence through the provision of Goods and Services under this Agreement.
26. Optional Conditions:  when marked in Item 18 of the Customer Order means special conditions which apply to certain kinds of Goods and Services including:
1. Part 1:  Software Development Services;
2. Part 2:  Internet Services;
3. Part 3:  Software Support Services;
4. Part 4:  System Integration;
5. Part 5:  Modifications and Upgrades; 
6. Part 6:  Data Services; and
7. Part 7:  Other Services.
27. Personal Information: means information or an opinion (including information or an opinion forming part of a database), whether true or not and whether recorded in a material form or not, about an individual whose identity is apparent or can reasonably be ascertained, from the information or opinion.
28. PPSA:  means the Personal Property Securities Act 2009 (Cth).
29. Previous CPI:  means for the Review Date, the CPI number for the last quarter ending one year prior to the Review Date.
30. Purchase Price:  with respect to Goods means:
1. a fixed amount; or 
2. in the case of Goods that are to be supplied by unit or in volume, the method of calculation relied on to determine the total price,

as described in the Customer Order.

31. Reasonable Refusal:  for Goods means the Goods:
1. are faulty or defective;
2. are not of an acceptable quantity or quality; or
3. do not comply with the relevant description.
32. Records: means all material including but not limited to books, documents, information, computer software, equipment, and data stored by any means disclosed, or made available in connection with the performance of this Agreement.
33. Review Date:  with respect to reviewing the pricing relied on to calculate the Purchase Price/Service fee, means the date nominated under clause 8.11 as being the review date.
34. Services: means:
1. the services described in the Customer Order; and
2. any tasks connected with performing the Services,

and includes any individual service items that are requested by the Customer during the Term.

35. Service Fee: with respect to services means the amount or method of calculation included in the Customer Order.
36. Specifications:  means any technical or other specification related to the manufacture and/or use of the Goods or the provision of Services, as made available at the time of purchase.
37. Statement of Works:  means the Customer Order, or in some cases following the receipt of the Customer order, a statement or description (usually in the form of the scoping template available at https://digidevs.com.au/software-design-template) that is prepared under clause 4 and which describes:
1. the scope of Goods and Services to be provided;
2. any specific performance requirements or milestones; 
3. any Customer specifications; 
4. any service level standards; and
5. protocols for communication between DigiDevs and the Customer.
38. Term:  means the period running from the Commencement Date till the Completion Date.
1. In this Agreement unless the context otherwise requires:
35. words importing a gender include any other gender;
36. words in the singular include the plural and vice versa;
37. all dollar amounts refer to Australian currency;
38. a reference to any legislation includes any subordinate legislation made under it and any legislation amending, consolidating or replacing it;
39. a reference to an individual or person includes a corporation or other legal entity; 
40. a reference to “consent” means prior written consent;
41. clause headings have been included for convenience only and are not intended to affect the meaning or interpretation of this Agreement; 
42. if any expression is defined, other grammatical forms of that expression will have corresponding meanings; and
43. if a party includes two or more persons, this Agreement will bind them jointly and each of them severally;
44. any reference to ‘notice’ under this Agreement means written notice; and
45. if there is inconsistency between the various parts that form this Agreement, priority will be determined according to the following:
1. special conditions in Item 17 of the Customer Order (if applicable);
2. the Customer Contract (Terms and Conditions);
3. any applicable Optional Conditions;
4. the Statement of Works;
5. any other attachments; and
6. any other document incorporated by way of reference.
2. Term
1. This Agreement:
35. will operate for the Term unless it is the subject of an earlier termination under clause 19; and
36. will continue on a periodic basis if:
1. the current fixed Term expires; and 
2. neither party provides written notice to the other of their intention not to renew before the fixed term expires. 
2. This Agreement will continue to operate until:
35. the Goods and Services have been properly provided; and
36. the Customer has given the Key Person notice that all Goods and Services have been properly provided.
3. Statement of Works
1. The terms and conditions in this Agreement become applicable when DigiDevs provides the Customer with a Statement of Works and:
35. the Statement of Works is accepted by the Customer without variation;
36. the Customer varies the Statement of Works and DigiDevs confirms its acceptance of each of the variations in writing; or
37. if mutual agreement cannot be reached on each of the variations initially, after the Statement of Works is subsequently renegotiated and agreed to by the parties.
2. To remove doubt, the Statement of Works can be negotiated and agreed to at the time this Agreement is formed, or at a later time.
3. In exchange for the Services Fee/Purchase Price, DigiDevs agrees to provide the Customer with Goods and Services in accordance with the Statement of Works.
4. Representatives
1. The Contact Person is the Customer’s main contact person for all exchanges of correspondence between the Customer and DigiDevs.
2. The Key Person is the main contact person for DigiDevs for all exchanges of correspondence between DigiDevs and the Customer.
3. The Key Person must:
35. liaise with and report to the Contact Person about the provision of the Goods and Services by DigiDevs and the development of any key performance requirements; and
36. at the Contact Person’s reasonable request, attend meetings with or provide written reports to the Contact Person; and
37. comply with any reasonable request or direction given by the Contact Person in relation to the provision of the Goods and Services.
4. DigiDevs and/or the Customer may permanently or temporarily replace the Contact Person and/or the Key Person subject to giving the other party notice of the replacement which includes:
35. the contact details for the new Contact Person and/or Key Person; and
36. if the replacement person is temporary, the likely duration of the term of appointment.
5. Provision of Services
1. This clause 6 applies when the Agreement involves DigiDevs providing Services to the Customer.
2. Upon finalising the Statement of Works, DigiDevs must:
35. ensure that all Services are provided at times, at intervals and in accordance with any reasonable instructions given by the Customer;
36. make proper investigations and enquiries to inform itself of the Customer needs in relation to the Services; and
37. ensure that due care, professional skill, expertise and diligence is exercised in connection with the Services.
3. DigiDevs warrants that:
35. all services will be provided to a high quality and professional standard;
36. all persons engaged to carry out the Services on its behalf  are competent, and have the necessary and appropriate qualifications, licenses, admissions, memberships, skills and expertise to successfully perform the Services; and
37. all Services will be carried out in accordance with any deliverables agreed to by the parties.
4. The Customer also agrees to:
35. do all things and execute all documents;
36. provide such information and assistance reasonably required (including outlining and explaining any performance obligations in connection with particular service items); 
37. pay any applicable Service Fees,
38. comply with all protocols for communication (as advised by DigiDevs),

to ensure the Services can be properly performed by DigiDevs.

7. Sale of Goods
1. Clause 7 applies when the Agreement involves a sale or supply of Goods by DigiDevs to the Customer.
2. DigiDevs agrees to supply Goods to the Customer in accordance with this clause 7.

Title

3. Legal and equitable title in the Goods passes to the Customer upon payment of the full Purchase Price to DigiDevs.
4. Subject to full payment of the Purchase Price, title of the Goods will be supplied free of any encumbrances and other adverse interests.
5. The Customer acknowledges that until full payment of the Purchase Price is received by DigiDevs, and in circumstances where the Customer receives early delivery of the Goods:
1. the Customer holds the goods as bailee for DigiDevs; 
2. a fiduciary relationship exists between the Customer and DigiDevs for the goods; and
3. subject to any express agreement to which enables the Customer to use the Goods for the intended purpose before title passes, the Customer keeping the Goods in the condition in which they were provided by DigiDevs until such a time that title in the Goods passes to the Customer.

Risk

6. Risk in the Goods passes to the Customer upon the earlier of the following:
1. the Customer collects the Goods from DigiDevs; 
2. DigiDevs delivering the goods to the Customer; or
3. upon legal and equitable title in the Goods passing to the Customer.

Acceptance

7. Within two days of receiving the Goods from DigiDevs, the Customer must:
1. carry out a physical inspection of the Goods; and
2. notify DigiDevs if the Goods do not comply with the description, conditions or warranties set out in this Agreement.
8. To the fullest extent permitted by law, the Goods are accepted by the Customer within two business days of:
1. the Customer collecting the Goods from DigiDevs; or
2. DigiDevs delivering the Goods to the Customer,

regardless of whether a physical inspection is carried out under clause 7.7.

Use

9. The Customer agrees that to the fullest extent permitted by law, they will only use the Goods:
1. for the intended purpose for which they are designed;
2. in the correct way; and 
3. in accordance with any relevant specifications, professional advice or user documents with respect to use.
10. To the fullest extent permitted by Law, if the Customer:
1. uses the Goods in a way that is inconsistent with 7.9, or
2. damages the goods through their own negligence or failure to properly maintain the goods,

then all customer warranties and all statutory warranties under the Australian Consumer Law will be invalidated.

11. To the fullest extent permitted by law, the Customer fully releases DigiDevs from all Loss suffered by the Customer (or any person claiming through the Customer) as a consequence of any breach of clauses 7.9 and 7.10.

Delivery

12. Where DigiDevs has agreed to deliver the Goods, DigiDevs will make all reasonable efforts to have the Goods delivered to the Customer in accordance with the Customer’s instructions.
13. Despite clause 7.12, DigiDevs is not be liable for:
1. any failure to deliver or any delay in delivery for any reason; 
2. any damage or loss due to unloading or packaging; or
3. except to the extent that such damage was caused by DigiDevs’s own negligent act or omission, damage to property caused upon entering premises to deliver the Goods.
14. Any costs incurred by DigiDevs through any failure by the Customer to accept the goods at time of delivery will be reimbursed by the Customer to DigiDevs. 
15. The Customer acknowledges that where DigiDevs coordinates delivery of the Goods other than by way of a Reasonable Refusal:
1. delivery charges and estimated delivery times depend on where the Goods are being delivered; and 
2. it is the Customer’s responsibility to ensure that all delivery information is correct. 

Representations and Fitness for Purpose

16. The fullest extent permitted by law, all representations, warranties, guarantees and implied terms in relation to the Goods are hereby excluded.
17. The Customer agrees that if it is aware (or should be aware) that the Goods are for a particular purpose, the Customer must clearly specify that purpose at the time of ordering the Goods. 
18. The Customer also acknowledges that:
1. it has made its own enquiries in  relation to the suitability and fitness of the Goods; and 
2. it does not rely on any warranty, condition, description or representation by DigiDevs in relation to their suitability and fitness of the Goods for a particular purpose.
7. Payment and Review

Payment

1. Subject to clause 9 (GST), upon the receipt of a valid tax invoice and in consideration for the Services provided under this Agreement, the Customer will:
1. pay DigiDevs the Service Fee/Purchase Price; and
2. reimburse DigiDevs for any expenses that are Approved Expenses.

Approved Expenses

2. For Approved Expenses that are not otherwise specified on the Commencement Date, the Customer:
1. must pay all Approved Expenses that are reasonably and properly incurred by DigiDevs under the Approved Amount.
2. for all Approved Expenses that are over the Approved Amount: 
1. must give its prior written approval to all expenses to be incurred by DigiDevs while performing the Services before they are actually incurred; and
2. will not be liable to reimburse DigiDevs for any Approved Expenses over the Approved Amount expenses unless prior written approval is granted.

Method of Payment

3. Subject to paragraph 8.4 being satisfied, the Service Fee/Purchase Price will be payable by the Customer:
1. at times and at intervals described in the Customer Order; or
2. if no timeframes and intervals are included in the Customer Order, at monthly intervals and in arrears.
4. The Service Fee/Purchase Price will be calculated by using the total amount or method of calculation included in or referred to in the Customer Order.
5. The Customer is not obliged to pay DigiDevs for any part of the Goods and Services until:
1. DigiDevs has given the Customer a tax invoice compliant with GST Law; and
2. the Customer has confirmed that the particular goods or service items to which the invoice relates have been properly performed in accordance with this Agreement.
6. All invoices submitted by DigiDevs must:
1. describe (or be accompanied by documents which describe) the particular goods or service items to which the invoice relates;
2. include the name of the Contact Person and any file reference number for the Customer (if applicable);
3. separately itemises any Approved Expenses (if applicable); and
4. having regard to clause 9 (GST) must be in a format which specifically identifies any GST payable to enable to the Customer to claim an input tax credit.
7. Upon receiving an invoice, the Customer may ask DigiDevs to provide further information about certain service items to help the Customer  to determine whether or not a particular amount is payable.
8. DigiDevs must promptly respond to any requests received under paragraph 8.7 by providing such information reasonably requested by the Customer.
9. If the invoice is incorrect, the Customer must notify DigiDevs within 14 days after receiving any invoice the Customer discovers are incorrect.
10. If the invoice is correct, the Customer must pay a correctly rendered tax invoice: 
1. in accordance with the payment intervals in the Customer Order; or
2. if additional information is requested under paragraph 8.7, within 7 days of the Customer receiving that additional information.

Fee Review

11. DigiDevs reserves the right to review and increase the pricing relied on to calculate any Service Fees/Purchase Price payable under this Agreement at the end of each financial year (Review Date) in accordance with the greater of the following:
1. fixed increases of 5%; or
2. CPI which involves taking those amounts in the pricing schedule relied on to calculate the Service Fee/Purchase Price for the previous year, multiplying those amounts by the Current CPI, and dividing them by the Previous CPI.
8. GST
11. Terms used in this clause have the meaning given to them in GST Law and all amounts payable under this Agreement are excluding GST.
12. Where the Goods and Services provided under this Agreement are:
1. a taxable supply; and
2. the consideration for that supply excludes GST,

the recipient must pay an amount equal to the GST in addition to the consideration payable for the supply.

3. The amount of GST will be calculated at the prevailing GST rate.
4. If the GST rate is varied, the consideration payable for any supply under this Agreement will be varied to reflect the change of rate and any reduction in any other tax, duty or statutory charge connected with the rate change.
5. Where GST applies to a supply made under this Agreement, the supplier will deliver to the recipient a valid tax invoice or adjustment note at, or before the time payment for the supply is required.
6. If an adjustment event occurs in connection with any taxable supply made under this Agreement:
1. the amount payable by the recipient will be recalculated to reflect the adjustment event; and
2. payment for the adjustment event will be made by the recipient to the supplier or by the supplier to the recipient (as the case requires).
7. Where a party is required under this Agreement to pay or reimburse an expense or outgoing of another party, the amount to be paid or reimbursed will be the sum of:
1. the amount of the expense or outgoing less any input tax credits for the expense or outgoing to which the other party is entitled; and
2. if the payment or reimbursement is subject to GST, an amount equal to that GST.
9. Conflict of Interest
3. DigiDevs warrants that:
1. to the best of its knowledge; and
2. on and from the Commencement Date,

it does not, and will not have any undisclosed conflicts of interest which otherwise affect the provision of Goods and Services under this Agreement.

2. DigiDevs must also take all reasonable steps to ensure it does not engage in any activity or obtain any interest which conflicts with, or adversely affects it ability to provide the Goods and Services fairly and independently.
3. If any actual or proposed conflicts of interest arises during the Term because of work intended to be undertaken by DigiDevs for any third party, DigiDevs must notify the Customer of:
1. the conflict of interest; and
2. any risks associated with the conflict,

and seek the Customer’s approval to carry out these works before it begins doing so (Approved Conflict).

11. Intellectual Property
1. Title to, and ownership of all Intellectual Property Rights in New Material developed through Services performed under this Agreement, will vest in the party nominated in the Customer Order upon its creation.
2. Paragraph 11.1 does not affect the ownership of any Existing Material belonging to another party that is used in connection with performing the Services under this Agreement.
3. For Existing Material, each party grants the other a perpetual, non-exclusive, non-transferable, royalty free licence to use Existing Material belonging to the other party for purposes related to:
1. performing the Services under this Agreement and achieving any purpose of the Customer which forms the basis for providing of any service items; and
2. developing any New Material which may result from the performance of those Services under this Agreement. 
4. Each party warrants that it owns, or is legally authorised to use all Existing Material provided by it that used in connection with performing the Services.
5. DigiDevs also grants the Customer a perpetual, non-exclusive, non-transferable, royalty-free licence to use any Existing Material belonging to or relied on by DigiDevs that is incorporated into New Material developed under this Agreement to:
1. use, reproduce and adapt the Existing Material for its own use;
2. perform any other act in relation to copyright subsisting in the Existing Material (including infringing any Moral Rights in the Existing Material);
3. manufacture, sell, hire, exploit or commercialise any product or process connected with the New Material; and
4. provide any service or licence to any third party.
6. This clause survives the expiry or early termination of this Agreement.
7. To remove doubt, each party warrants that all employees, officers, agents, contractors or sub-contractors involved in delivering any of the Services will be bound by this clause.
12. Confidential Information
1. Parties must ensure that Confidential Information is kept confidential and is not disclosed to any person except:
1. to its employees, officers, agents, contractors and sub-contractors to the extent needed for the performance of this Agreement;
2. where disclosure is authorised or required by law; or
3. with the disclosing party’s consent.
2. Each party must:
1. ensure that all Confidential Information is kept reasonably secure;
2. ensure that all Confidential Information is only used for purposes directly related to the provision and use of Goods and Services, and only the relevant purpose for which it is originally disclosed;
3. immediately notify the other party if it becomes aware of any breach of this clause, or if a disclosure of Confidential Information is required by law; 
4. if requested by the disclosing party:
1. deliver or destroy all documents, records or files in its possession or control which contain Confidential Information in accordance with the disclosing party’s instructions; or
2. obtain from its officers, employees, agents and sub-contractors a deed of confidentiality in a form acceptable to the Customer. 
3. To remove doubt, each party warrants that:
1. all employees, officers, agents, contractors or sub-contractors involved in the provision or receipt of Goods and Services under this Agreement will be bound by this clause; and
2. they will immediately notify the other party upon discovering there has been a breach of this clause.
13. Personal Information
1. This clause 13 applies if:
1. DigiDevs (in providing the Goods and Services under this Agreement) will in any way deal with Personal Information for the Customer; or
2. the Goods and Services under this Agreement will involve:
1. the transfer of Personal Information from the Customer; or
2. the provision of services to a third party for the Customer.
2. Unless authorised by law, DigiDevs must:
1. ensure that Personal Information is protected against loss and against unauthorised access, use, modification, disclosure or other misuse;
2. not use Personal Information other than for the purposes directly related to providing the Goods and Services under this Agreement;
3. not disclose Personal Information without the prior written consent of the Customer;
4. ensure that access to Personal Information is restricted to those persons who require access in order to perform their duties under this Agreement;
5. ensure that its employees, officers, agents, contractors and sub-contractors comply with the same obligations imposed on DigiDevs under this clause; 
6. fully and promptly cooperate with the Customer to enable the Customer to respond to any applications or privacy complaints which require access to, or amendment of, a document containing a person’s Personal Information;
7. immediately notify the Customer if DigiDevs becomes aware or any unlawful use or disclosure of Personal Information in its possession or control; 
8. comply with such other privacy and security measures required by the Customer agreed to in writing from time to time; and
9. if requested by the Customer, promptly return or destroy any record, document or file which contains Personal Information in accordance with the Customer’s instructions upon the expiry or termination of this Agreement.
3. DigiDevs must also:
1. ensure its employees, officers, agents, contractors and sub-contractors are bound by this clause; and
2. immediately notify the Customer upon becoming aware of any breach of this clause.
14. Security and Access
1. DigiDevs must, when using the Customer’s premises, facilities or other resources belonging to the Customer:
1. comply with this Agreement; and
2. comply with the Customer’s rules, directions and procedures, including those relating to security or workplace health and safety and data security.
15. Data Security
1. When involved in the provision of Goods and Services that include the management, maintenance, storage and transfer of Customer data,  DigiDevs agrees that it will:
1. do all things reasonably necessary to ensure the Customer data is secure; and
2. notify the Customer if there has been a breach of data security and will do all things reasonably necessary to remedy the breach.
16. Suspensions and Variations to Services
1. Subject to this clause 16 and clause 21 (Force Majeure), the Customer may at any time and by giving notice, ask DigiDevs to:
1. temporarily suspend all or any part of the Goods and Services to be provided under this Agreement; 
2. recommence all or any part of the Goods and Services that were temporarily suspended; or
3. vary the scope as to the provision of the Goods and Services by:
1. increasing the volume of any part of the Goods and Services or by asking DigiDevs to perform additional work; or
2. changing the character or content of any part of the Goods and Services.
2. Upon receiving a notice under clause 16.1, DigiDevs must notify the Customer of whether it accepts or rejects the Customer’s request for suspension or variation (whether it be with or without conditions) and explain the reasons in support of the decision.  
3. Where:
1. the Customer gives DigiDevs notice to amend the Statement of Works; and 
2. the variation is accepted by DigiDevs, 

the total Service Fee/Purchase Price for the additional Goods and Services may be proportionately adjusted by using the applicable method of calculation for the Goods and Services at the relevant time.

4. DigiDevs also reserves the right to adjust the Service Fee/Purchase Price when additional Goods and Services become necessary because:
1. the Customer has requested that additional works to be performed;
2. there is inconsistency between the Customer’s actual requirements and the requirements as scoped under the Statement of Works and the Customer is the source of the inconsistency; and
3. there are other variables which have resulted in the need for additional works, including:
1. any failure, damage or misuse of the Goods and Services by the Customer or any third party engaged by the Customer;
2. any rectification works which become necessary because of Customer fault;
3. any act or omission by the Customer or any third party engaged by the Customer, which invalidates any consumer warranties and/or statutory warranties under the Australian Consumer Law;
4. not complying with any specifications, instructions for use or professional advice that is provided in connection with the Goods and Services;
5. functionality impairments and disruptions that arise with the Customer’s hardware, software or other equipment for which DigiDevs is not responsible;
6. functionality impairments and disruptions which arise through damage, power shortages or another failure for which DigiDevs is not responsible;
7. delays in providing the instructions needed to provide the Goods and Services by the Customer;
8. the nature and complexity of the works materially different from those agreed to under the Statement of Works;
9. other works which fall outside the scope of the Statement of Works become reasonably necessary including Customer training; and
10. unexpected or unusual issues in connection with the Goods and Services.
16. Release and Indemnities

DigiDevs Release and Indemnity

1. Subject to clause 17.3 - 17.5 and to the fullest extent permitted by law, DigiDevs indemnifies and releases the Customer for Loss resulting from any Claim related to:
1. any act or omission which amounts to a breach of DigiDevs’s obligations under this Agreement;
2. any unlawful act or omission connected with DigiDevs’s actual or attempted performance of its obligations under this Agreement;
3. any neglect or default connected with DigiDevs’s actual or attempted performance of its obligations under this Agreement;
4. any neglect or default in connection with the supply of the Goods and Services;
5. all costs (including legal costs on a standard basis) that are reasonably and properly incurred by the Customer because of DigiDevs’s breach of this clause 17.1. 
2. DigiDevs’s liability under this clause will be proportionately reduced to the extent that the Customer’s officers, employees, agents or contractors contribute to the Loss that is the subject of the Claim.
3. In no event will DigiDevs be liable for any Loss that is the subject of any Claim related to:
1. faulty design;
2. negligent or misleading advice;
3. in the case of goods supplied, any direct or indirect Loss resulting from the Customer’s actual or attempted failure to use the relevant Goods in the prescribed way;
4. any indirect, special or consequential Loss or injury to any person, corporation or other entity; or 
5. any act or omission by the Customer or any third party engaged by the Customer to which clause 16.4(c) applies.
4. If this Agreement constitutes a supply of Goods and Services under the Competition and Consumer Act 2010 (Cth):
1. nothing contained in this Agreement excludes or modifies any condition, warranty or other obligation in relation to this Agreement where it is unlawful to do so; and
2. to the fullest extent permitted by law, DigiDevs’s sole liability for breach of any such condition, warranty or obligation is limited to:
1. the replacement of the goods or the supply of equivalent goods, or payment of the cost of replacing or acquiring equivalent goods; 
2. the repair of the goods or payment of the cost of having the goods repaired; 
3. the supplying of the Services again;
4. the payment of the cost of having the Services supplied again. 
5. If this agreement does not constitute a supply of goods or services to a consumer as defined in the Competition and Consumer Act 2010 (Cth):

1. DigiDevs will not liable for any consequential loss resulting from negligence, breach of contract or any other theory of liability; and

2. to the full extent permitted by law, DigiDevs’s liability in connection with its supply, or any failure to supply the Goods and Services is limited to the amount (or the aggregate of the amounts) payable by the Customer under this Agreement.

Customer Indemnity

6. To the fullest extent permitted by Law, the Customer indemnifies DigiDevs from all Loss resulting from any Claim, and which arises because the Customer, or any third party engaged by the Customer:
1. damages any equipment, hardware and software (IT Systems) belonging to DigiDevs that is in the Customer’s possession or control;
2. causes data loss or a severe functionality disruption which renders DigiDevs’s IT Systems fully or partially inoperable through:
1. any wilful act or negligence;
2. not complying with any specifications, instructions for use or professional advice provided by DigiDevs with respect to the Goods and Services;
3. not updating or maintaining any part of the Customer IT Systems that integrates with DigiDevs IT Systems for purposes related to the Goods and Services;
4. any virus that is uploaded onto DigiDevs’s IT Systems and which is proven to originate from the Customer IT Systems, the Customer or any third party engaged by the Customer;
5. any breach of data security which is caused by the Customer, or any third party engaged by the Customer, or which originates from the Customer IT Systems; or
3. any other breach of clause 16.4(c) for which the Customer is responsible.
7. The Customer’s liability under clause 17.6 will be proportionately reduced to the extent that the DigiDevs’s employees, officers, agents, contractors or sub-contractors contribute to the Loss that is the subject of the Claim.

18. Insurances
1. DigiDevs must take out and maintain the following insurance for the duration of this Agreement:
1. workers’ compensation insurance under the Workers’ Compensation and Rehabilitation Act 2003 (Qld);
2. public liability insurance valued at $5 million per occurrence; and
3. professional indemnity valued at $1 million per occurrence.
2. DigiDevs must also ensure that any contractor or sub-contractors engaged by it to assist in the provision of the Goods and Services are also adequately insured.
19. Termination
1. The Customer may only terminate this Agreement by giving written notice to DigiDevs if:
1. DigiDevs breaches an essential term of this Agreement that cannot be remedied;
2. DigiDevs breaches any other term of this Agreement that is not remedied within 30 days of DigiDevs receiving written notice from the Customer about the breach;
3. The Customer terminates this agreement due to a conflict of interest which contravenes clause 10;
4. DigiDevs:
1. becomes bankrupt or insolvent;
2. becomes subject to any form of external administration; 
3. enters into an arrangement with its creditors or otherwise takes advantage of any laws in force in connection with insolvent debtors; or
4. is wound up either voluntarily or involuntarily, or
5. if this Agreement becomes a periodic Agreement under clause 3.1(b), by giving DigiDevs three months written notice to this effect.
2. DigiDevs may also terminate this Agreement by giving written notice if:
1. the Customer breaches an essential term that cannot be remedied; or
2. the Customer breaches any other term of this Agreement that is not remedied within 30 days of the Customer receiving written notice from DigiDevs about the breach; or
3. if the Agreement becomes periodic under clause 3.1(b), by giving the Customer three months written notice to this effect.
3. Termination of this Agreement will not:
1. affect any claim or action either party may have against the other by reason of any prior breach of this Agreement; or
2. relieve either party of any obligation under this Agreement which survives its early termination or expiry.
20. Dispute Resolution
1. If a party considers that a dispute has arisen in relation to this Agreement, that party must give notice to the other party setting out details of the dispute.
2. If a party receives a notice under subclause 20.1, each party must appoint a representative with authority to resolve the dispute, and the representatives must meet within 14 days.
3. If a dispute is not resolved within 45 days after a notice is given under subclause 20.1:
1. the dispute is hereby submitted to mediation; and
2. the mediation must be conducted in Brisbane; and
3. the Mediation and Conciliation Rules, to the extent they apply to mediations are to govern the mediation (and are incorporated into this agreement to that extent).
4. A party must not commence proceedings in any court against the other party to bring, assert or recover a Claim from the other party under or in relation to this agreement unless:
1. the Claim is for the recovery of a debt payable under this agreement; or
2. the Claim is the subject matter of a dispute that has been submitted to mediation under subclause 20.3, and the mediation has been terminated under the Mediation and Conciliation Rules; or
3. the Claim is for an equitable or interlocutory remedy or relief, such as an injunction or specific performance.
21. Force Majeure
1. If either party is unable to meet an obligation or deliverable under this Agreement by the relevant due date because of a Force Majeure Event, the non-affected party must extend the due date for the relevant obligation or deliverable by a period equal to the period of delay, subject to the affected party:
1. giving the non-affected party written notice of the Force Majeure Event within 7 days of its occurrence along with other evidence demonstrating the existence of the Force Majeure Event; 
2. continuing to perform any obligations under this Agreement that are not affected by the Force Majeure Event;
3. using its best endeavours to overcome the effects of the Force Majeure Event as soon as possible; and
4. notifying the non-affected party as soon as it is no longer affected by the Force Majeure Event. 
22. Personal Property Securities Act (PPSA)
1. To the extent that any reservation in favour of DigiDevs under this Agreement is a security interest under the PPSA (and if the Customer is in default) DigiDevs may:
1. take steps to register their security interest on the personal property securities register; and
2. if the Customer is in default:
1. take possession of the Goods;
2. enter the Customer’s premises for that purpose; 
3. appoint any person to be a receiver of all or any of the Goods, subject to a security interest being created by this document.
2. Until legal and equitable title passes to the Customer, the Customer must not do anything:
1. to further encumber the Goods; or
2. that will result in the security interest granted in favour of DigiDevs as ranking in priority behind any other security interest.
3. The Customer:
1. waives its right under section 157 of the PPSA to receive a copy of the verification statement relating to a security interest created under this Agreement; and
2. contracts out of its right to receive any other notice or statement under any other applicable provisions in the PPSA.
4. To the fullest extent permitted by the PPSA, the parties agree to contract out of sections 95, 96, 117, 118, 120, 121(4), 125, 128, 129, 130, 132(3)(d), 132(4), 134(1), 135, 142 and 143, and these sections will not apply to this Agreement.
23. Notices
1. Any notice, request, notification, consent or approval (notice) under this Agreement must be in writing and may be sent by prepaid postage, fax, email or delivered by hand to the following respective addresses:
1. for the Customer – as set out in the Customer Order;
2. for DigiDevs – as set out in the Customer Order,

or at such other address as a party may subsequently give notice of to the other.

2. A notice will be deemed to be given:
1. if posted - two days after the date of posting;
2. if delivered - on the date of delivery; 
3. if faxed - on the date the sender’s facsimile machine notes a complete and successful transmission; or
4. if emailed - on the date of the email;
3. Notwithstanding paragraphs 23.1 and 23.2, any fax or email that is received after 5:00 pm will be deemed to be given on the next business day.
23. Miscellaneous
2. Entire Agreement:  This Agreement constitutes the entire agreement between the parties and supersedes all prior negotiations, arrangements and agreements between the parties.
3. No Partnership, Joint Venture, Employment or Agency: The parties agree that:
1. the relationship under this Agreement is one of principal and contractor; and
2. they are not in partnership or joint venture with each other; and 
3. they will not represent themselves or allow themselves to be represented as a partner or joint venturer, employee or agent of the other party.
4. Delay not to constitute waiver:  Any failure by a party at any time to enforce a clause of this Agreement, or any forbearance, delay or indulgence granted by a party to the other, will not constitute a waiver of the party’s rights.
5. Waiver to be in writing:  No provision of this Agreement will be deemed to be waived unless that waiver is in writing and signed by the waiving party.  
6. Waiver limited to specific occasion:  A waiver by a party of a breach of any provision under this Agreement will not operate as a waiver of any subsequent breach of the same provision or as a waiver of any other provision.
7. Governing law:  This Agreement is governed by the laws of Queensland and each party submits to the jurisdiction of the courts of Queensland.
8. Compliance with all laws: DigiDevs must comply with all relevant laws in the performance of the Services.
9. Severability:  If any part of this Agreement is determined to be invalid, unlawful or unenforceable for any reason, then to the full extent permitted by law:
1. the offending provision will be severed from the rest of the Agreement; and
2. the remaining terms and conditions will continue to be valid and enforceable.
10. Further Assurances:  DigiDevs must do all things and execute all documents reasonably required by the Customer to give effect to this Agreement.
11. Assignment:  DigiDevs may not assign or novate its interest in this Agreement without the prior written consent of the Customer.  
12. Records:  DigiDevs must keep and maintain Records of all Goods and Services provided in accordance with good professional practice.
13. Contracting Out:  DigiDevs is free to engage and use any contractor or sub-contractor to assist in the provision of all or any part of the Goods and Services under this Agreement without the Customer’s consent.
24. Clauses Surviving Termination
2. The following clauses will survive termination or expiration of this Agreement:
1. clause 11:  Intellectual Property;
2. clause 11:  Confidential Information;
3. clause 13:  Personal Information;
4. clause 17:  Release and Indemnity;
5. clause 17.7:  Insurances; and
6. clause 24.9:  Further Assurances.

Optional Conditions - Part 1:  Software Development Services

1. Part 1 applies if Software Development Services is:
1. marked in Item 18 of the Customer Order; and 
2. relevant to the Goods and Services described in Item 3 of the Customer Order and the Statement of Works.

Definitions

2. The following definitions apply to this Part 1:
1. Designated Operating Environment: means the particular hardware and software environment in which the product software, licensed software or Developed Software is to be used by the Customer. 
2. Development Services: means the Services specified in the Statement of Works and provided by DigiDevs to produce the Software Solution; 
3. Developed Software: means: 
1. software that is to be developed; and/or 
2. the customised or modified parts of licensed software that is to be customised or modified, except for minor customised or modified parts as detailed in the Statement of Works; 
4. Software Solution: means a product which is a developed or modified software solution specified in the Statement of Works to be created by DigiDevs for the Customer, and may include:
1. Personal Computer (PC) applications;
2. Website applications; or
3. Mobile Device applications.
5. User: means a person who may use the Software Solution for the purpose of performing their work;
6. Warranty Period:  means the Software Solution for the first thirty (30) days after the Software Solution is accepted by the Customer. 

Service Period

3. DigiDevs will provide Development Services for 
1. a specific service period is one is nominated in the Statement of Works; or
2. for the Term if a specific servicing period is not nominated.

Provision of Development Services

4. DigiDevs will supply to the Customer the Development Services in accordance with the Customer Contract. 
5. DigiDevs will also develop, install (if applicable) and test the Software Solution to ensure its conformity with the Statement of Works and any design specifications. 

Nature of Development Services

6. DigiDevs must, in accordance with the Statement of Works:
1. implement all activities necessary for performing  performance of the Development Services; and
2. perform any other services specified in the Statement of Works. 
7. The Statement of Works, insofar as it includes Development Services will include information about the following about the following processes:
1. assess and define the Customer’s existing IT System or the Designated Operating Environment, if necessary; 
2. identify the Customer’s goals, requirements and expectations for the Software Solution which will include a statement of DigiDevs’s understanding of the Customer’s and/or User’s experience and requirements in relation to the Software Solution 
3. identify; 
1. the roles and responsibilities of the Parties, 
2. the objectives to be met by DigiDevs; 
3. the scope and parameters of the Software Solution; and
4. any milestones or deliverables; 
5. any resources required including resources that are to be made available by the Customer; and 
6. the complexity of the Services,
4. development of a strategy for creating the and implementing the Software Solution and which;
1. identifies the Services to be performed; 
2. identifies the procurement of necessary products; 
3. identifies any stages of development, methodology, implementation and acceptance of the Software Solution; and
4. includes a payment schedule (if the services fee is calculated by using a method of calculation).
5. development of a design specification for the Software Solution in accordance with this Part;
6. development of the Software Solution itself (including prototyping if applicable) in accordance with this Party; and 
7. testing and acceptance of the Software Solution by the Customer. 

Design Specification

8. DigiDevs will prepare a design specification for the Software Solution that is consistent with the Statement of Works:
1. on the date specified in the Statement of Works; and
2. which enables the Software Solution to be installed in the Designated Operating Environment.
9. The design specification will include technical explanation on how the Software Solution complies with the functions, specifications and deliverables included in in the Statement of Works. 
10. DigiDevs will:
1. use its best endeavours to ensure the Customer is kept informed while preparing the design specification; and
2. upon completion of the design specification (or the final design as the case may be) provide it to the Customer so it can be approved.
11. If the Customer has any objection to the design specification provided by DigiDevs before approval:
1. it must notify DigiDevs promptly of any alterations it reasonably requires; and
2. upon being notified, DigiDevs must not unreasonably refuse to amend the design specifications to take into account the Customer’s reasonable requirements.
12. Once the design specification is mutually agreed to by both parties, it will become part of the specifications in the Statement of Works and will vary and previous specifications to the extent applicable.

Methodology

13. DigiDevs’s methodology for the development of the Software Solution will: 
1. identify and control software components of, and changes to the Software Solution to maintain the integrity and traceability of the Software Solution at all Stages of development; 
2. ensure control, development and supply of Documentation relating to the Software Solution; 
3. ensure that the Software Solution is written and documented, as far as practicable, in a way which would enable future modification without further reference to DigiDevs; 
4. where applicable, references and documents procedures for corrective action in respect of the Software Solution and associated documentation prior to acceptance; and
5. complies with the Statement of Works.

Source Code

14. Where the Customer Contract specifies that:
1. DigiDevs owns the Intellectual Property Rights in the Software Solution; or
2. The parties jointly own the Intellectual Property Rights in the Software Solution,

DigiDevs will provide the source code to the Customer in a format which is suitable for compilation and use in the Designated Operating Environment at the completion of the Customer Contract. 

15. When applicable and necessary, DigiDevs will also inform the Customer as to the nature and use of software tools, methodologies or other devices owned by DigiDevs or any other Party, in the production of the Software Solution. 
16. If DigiDevs owns the software tools, methodologies, user documents or other devices required to use, maintain or enhance the Software Solution, DigiDevs will upon being requested in writing at any time during the Term, provide a licence to the Customer to use all material to which this clause 16 applies, for purpose of using, maintaining and enhancing the Software Solution. 

Use before Customer Acceptance

17. The Customer may not use the Software Solution in a production environment prior to Acceptance unless such use is contemplated under the Statement of Works. 

Warranties

18. Where the Customer Contract states that the Customer wholly owns the Intellectual Property in the Software Solution, DigiDevs warrants that it will: 
1. neither permit nor tolerate the making of any copies of the Software Solution without first obtaining the Customer’s written consent; 
2. inform its employees, officers, agents, contractors and sub-contractors of their legal responsibilities in relation to the protection and use of the Software Solution. Optional Conditions - Part 2:  Internet Services 

1. Part 2 applies if Internet Services is:
1. marked in Item 18 of the Customer Order; and 
2. relevant to the Goods and Services described in Item 3 of the Customer Order and the Statement of Works. Internet Services

Definitions

2. The following definitions apply to this Part 2:
1. Domain Name:  means the address or identifier of the location of the Website on the Internet; 
2. Filtering Services:  mean the provision of services, including virus and spam filtering, which restricts or denies access by a User to content as more particularly described in the Statement of Works; 
3. Hosting Services:  means Internet Services and Filtering Services as more particularly described in the Statement of Works;
4. Internet (also referred to as “World Wide Web” or “WWW”): means a public interconnected system of networks that connects computers around the world to facilitate electronic exchange of data and information; 
5. Internet Services:  means the provision of web related Services specified in the Statement of Works including, but not limited to the following hosting services for publishing data or information on the Internet: 
1. web hosting services; 
2. web hosting support services; 
3. web site activity reporting; 
4. Filtering Services; and/or 
5. search engine registration services; 
6. Scheduled Maintenance:  means maintenance that needs to be performed on DigiDevs’s equipment to ensure that the equipment performs within the Statement of Works and any specifications; 
7. Services: means the services required by the Customer and specified in the Statement of Works and includes Internet Services and Internet Domain Name Services.
8. User:  means a user of the Services authorised to log on to the Customer’s network or the Website by the Customer; 
9. Visitor:  means a person other than the Customer’s User who seeks access over the Services; 
10. Web Pages:  means hypertext documents that can contain text, graphics, images, sound, video and other multi-media material available to Customer’s Users and Visitors on the Internet; 
11. Website: means a collection of Web Pages in a single Internet or intranet domain. 

Service Period

3. DigiDevs will provide the Internet Services to the Customer:
1. for a specific servicing period if one is nominated in the Statement of Works; or
2. for the Term if a specific servicing period is not nominated. 
4. If the Term is to be extended by the Customer in accordance with the Customer Contract, the Customer must give at least thirty (30) days prior written notice to DigiDevs prior to the expiry of the Term. 

Provision of Services

5. DigiDevs must ensure that the Services have sufficient capacity, availability and quality during the term of the Term in accordance with the Statement of Works, the specifications and any agreed service level standards.
6. DigiDevs will supply, deliver and install the Services at the Site(s) specified in the Customer Contract and the Statement of Works. 
7. DigiDevs warrants that it has examined all information which is relevant to risks, contingencies and other circumstances which could affect the supply of the Services which is obtainable by making reasonable enquiries.  

Provision of Internet Services 

8. Where the Customer Contract and the Statement of Works specifies that DigiDevs is to provide Internet Services to the Customer clauses 9 – 12 of Part 2 will apply.
9. DigiDevs will provide the Customer with a shared or dedicated web server as specified in the Statement of Works.
10. DigiDevs will provide a managed environment for the Customer’s Websites, including, but not limited to: 
1. operational support of the shared machine housing the Website; 
2. operational support of system and server software for the Website, including database servers, if applicable; 
3. operational support of the network interfaces between the Website and the Internet; 
4. configuration management of the shared or dedicated web server; 
5. data storage management, including site mirroring, daily tape backups and off-site media storage; 
6. service centre for receiving, logging, processing, notifying, tracking, reporting and resolution of problems;
7. initial registration of search engines; and 
8. site activity logging and reporting. 
11. Unless otherwise agreed between the Parties, DigiDevs will log all activity on the Customer’s Website(s), and maintain relevant statistics in raw log format which include: 
1. date/time stamp; 
2. source IP address and/or host name; 
3. browser type; 
4. URL accessed; 
5. action requested; and 
6. result. 
12. DigiDevs will:
1. retain log information and relevant statistics for a period of not less than twelve (12) months from the date of logging; and 
2. make available the log information for the periods and in a format requested in writing by the Customer from time to time. 

 Internet Domain Name Services

13. Where the Customer Contract and the Statement of Works specifies that DigiDevs is to provide Internet Domain Name Services to the Customer, clauses 14 – 16 of Part 2 will apply.
14. DigiDevs will provide and maintain Domain Name Server(s) (“DNS”) for the Customer’s domain(s), unless otherwise specified in the Statement of Works. 
15. The Domain Name Server(s) will contain all necessary details for the functioning of the Customer’s Internet Services. 
16. If specified in the Statement of Works, DigiDevs will establish Domain Name Server(s) for each domain registered and manage the delegation process with the parent domain.

Scalability

17. DigiDevs will provide any scalability adjustments, including capacity, availability and quality of the Services, as specified in the Statement of Works or any applicable service level standards. 

Hosting Services

18. DigiDevs will use its best endeavours to ensure that:
1. any computer downtime attributable to upgrades or Scheduled Maintenance will not prevent access to the Website by the Users or Visitors in accordance with the Statement of Works; or
2. where computer downtime attributable to upgrades or Scheduled Maintenance does disrupt use in accordance with the Statement of Works that such disruptions are kept to a minimum.
19. The Hosting Services do not include content maintenance and the Contactor will not be liable for any deficiency or inaccuracy of any information contained on the Website caused by the Customer’s failure to carry out content maintenance, unless otherwise specified in the Statement of Works. 
20. DigiDevs provides no warranties and makes no representations about the authenticity of Customer Website content, and reserves the right to remove, amend content other material without liability if DigiDevs finds that such content:
1. is unlawful or obscene;
2. is intentionally or unintentionally amounts to intimidation or harassment;
3. is discriminatory, defamatory, inflammatory or profane;
4. is sexually-oriented or contains sexual references; or
5. violates or infringes another person’s rights (including rights of privacy and publicity, and intellectual property rights).
21. The Customer also indemnifies and releases DigiDevs from and for all Loss resulting from any Claim which arises because of:
1. the Customer’s breach of clause 20(a)-(e) of Part 2.
2. any inaccuracy or misrepresentation that is published in by the Customer;
3. the infringement of any third party Intellectual Property Rights by the Customer;
4. the breach of any laws in connection with the publication of Website content by or for the Customer; 
5. a failure by the Customer to meet its obligations in connection with the provision of goods and services to any third party; and
6. any other act or omission that results in the Customer being in default of any third party arrangement directly related to any material that is published \as a consequence of the Goods and Services provided under this Agreement.

Domain Names 

22. Unless specified in the Statement of Works, the Customer will be responsible for securing a Domain Name for the Website and to supply DigiDevs with details of the Domain Name. 

Customer’s Obligations

23. The Customer will use reasonable endeavours to ensure that its Users and Visitors do not use the Internet Services: 
1. for any illegal, pornographic, fraudulent or defamatory purposes; 
2. to engage in the bulk transmission of unsolicited electronic mail; 
3. to send or cause to be sent any computer worms Viruses or other similar programs; 
4. to make unauthorised access to any other computer systems;
5. to send any harassing, obscene, indecent, offensive or threatening electronic mail; 
6. to reproduce, distribute, transmit, publish, copy or exploit any material that constitutes an infringement of any Intellectual Property Rights of a third party in Australia; or 
7. violates any applicable privacy legislation. 

Service Levels

24. DigiDevs will immediately notify the Customer o:
1. the occurrence of; or 
2. the pending or threatened occurrence of,

any unexpected event that may adversely affect DigiDevs ability to perform the Services in accordance with any agreed service level standards under the Statement of Works. 

25. DigiDevs does not warrant that the Customer will have continuous access to the Services but does warrant that the Customer will have access to the Services in accordance with the Statement of Works. 
26. Where a fault occurs in a Service not controlled by DigiDevs (including those Services that are contracted out under this Agreement), DigiDevs will proceed with reasonable skill and care to remedy or assist in remedying the fault. 

Termination of Services

27. DigiDevs will erase a specific User’s identification or log-in information within three (3) days of termination of the Services or upon a written request to do so from the Customer. 

Optional Conditions - Part 3:  Software Support Services

1. Part 3 applies if Software Support Services is:
1. marked in Item 18 of the Customer Order; and 
2. relevant to the Goods and Services described in Item 3 of the Customer Order and the Statement of Works.
2. The following definitions apply to Part 3 (Software Support Services):
1. Developed Software: means:
1. software that is developed; or 
2. the customised or modified parts of licensed software or product software but for minor modifications.
2. Software Support Services:  means services provided by DigiDevs to the Customer in connection with the Supported Software.
3. Supported Software:  means the software (including packaged software, licensed software or Developed Software) described in the Statement of Works that is the subject of Software Support Services, and when specified, may include updates, new releases, modifications and enhancements.

Service Period

3. DigiDevs will to provide Software Support Services for:
1. the specific servicing period if one is nominated in the Statement of Works; or 
2. for the Term if a specific servicing period is not nominated in the Statement of Works.

Supported Software

4. DigiDevs agrees that through provision of the Software Support Services the Supported Software will remain in conformity with the Statement of Works, any service level standards and any applicable specifications.
5. DigiDevs may also:
1. offer the Customer any updates and new releases for the Supported Software at a price to be confirmed by DigiDevs; and
2. offer training to the Customer on how to use the Supported Software following the installation of the Supported Software or any update or new release.
6. Where the Customer accepts an update or new release:
1. DigiDevs will deliver the update or new release to the Customer;
2. if DigiDevs is to install the update or new release, a Services Fee will be charged for any installation costs and training (if applicable); and
3. the Statement of Works (inclusive of any specifications) will be deemed to be amended to the extent that the new specifications for the update or new release supersede the original specifications.
7. DigiDevs will carry out the Software Support Services to a standard that ensures continuity in performance of the Supported Software in accordance with the Statement of Works.
8. To remove doubt, Software Support Services do not include services that involve correcting faults, errors or defects caused by:
1. operating the Supported Software in a manner which contravenes the Customer's obligations as specified in the Agreement.
2. failure by the Customer to operate the Supported Software in accordance with the Statement of Works, the specifications and any service level standards that have been made known to the Customer;
3. use by the Customer of the Supported Software in an environment other than that contemplated under the Statement of Works;
4. failure by the Customer to use the Supported Software in conformity with any user documentation provided to the Customer;
5. equipment maintenance performed by a person other than DigiDevs; or
6. any modifications to Support Software by the Customer or a third party which have not been authorised by DigiDevs.

Optional Conditions - Part 4:  System Integration

1. Part 4 applies if System Integration is:
1. marked in Item 18 of the Customer Order; and 
2. relevant to the Goods and Services described in Item 3 of the Customer Order and the Statement of Works.

Definitions

2. The following definitions apply to Part 4:
1. Configuration: means the various items of operationally related hardware and software specified in the Statement of Works.
2. DigiDevs Supplied Equipment: means equipment that is to be supplied by DigiDevs in connection with the Goods and Services under the Customer Contract.
3. Designated Operating Environment: means the particular hardware and software environment in which product software, licensed software or Developed Software is to be used by the Customer;
4. Developed Software: means:
1. software that is developed; or 
2. the customised or modified parts of licensed software or product software but for minor modifications.
5. Integration/Integrate: for the System means the implementation and setting to work of the System;
6. Minimum System Configuration: means a group of operationally related items of hardware and software agreed between the Parties as described in the Statement of Works, as being the configuration which meets the minimum processing needs of the Customer; and
7. IT System:  means the Customer supplied equipment as integrated with the Customer supplied items in accordance with the Statement of Works.

Scope

3. DigiDevs will, under this Agreement, supply and Integrate the IT System to comply with the Statement of Works

.DigiDevs as Agent

4. The Customer authorises DigiDevs to acquire as agent of the Customer, any goods and services needed to complete the System Integration in accordance with the approved expenses provisions in the Customer Contract.
5. If specified in the Statement of Works, DigiDevs:
1. maybe appointed as agent to manage any existing maintenance obligations for Customer supplied items;
2. if appointed, will provide and maintain Customer supplied items during the Term.

Acceptance Testing

6. DigiDevs may also be engaged to carry out a test to ensure the Customer’s IT System:
1. operates in the intended way;  
2. is able to be properly used for the intended purpose; and
3. functions in a way that is consistent the Statement of Works and any service level standards (Acceptance Test).
7. The Customer must provide DigiDevs with any data that maybe reasonably necessary to carry out any Acceptance Testing.
8. The System will be deemed to be accepted by the Customer upon the earlier of the following (Acceptance Date):
1. the Customer notifying DigiDevs that it is satisfied with the outcomes of the Acceptance Testing within three business days of its completion;  or
2. DigiDevs (acting reasonably) successfully completing an Acceptance Test to an agreed standard (or if there is no agreement a reasonable standard), notifying the Customer of the outcome of the test, and the Customer not responding within three business days.
9. If the outcome of any Acceptance Testing is not satisfactory, DigiDevs and the Customer will do all things reasonably necessary to work towards resolving any issues so that the IT System functions in the intended way.

System Warranty

10. Subject to any Law, DigiDevs warrants that for 3 months from the Acceptance Date (Warranty Period), the System will continue to operate in the intended way, for the intended purpose and will comply with the Statement of Works and any specifications.
11. The Customer’s warranty will be invalidated when the Customer or any third party:
1. damages the IT System through negligence;
2. the IT System is damaged by acts of god or events normally covered by contents insurance;
3. does not maintain the IT System in the recommended way;
4. uses the IT System in a way which contravenes the Customer's obligations as specified in the Agreement;
5. uses the IT System in a way that is inconsistent with the Statement of Works, any specifications, any service level standards, or any applicable user documents that has been supplied and made known to the Customer; or
6. makes a major modification or upgrade to various parts of the IT System which have not been authorised, approved or carried out by DigiDevs; or
7. breaches clause 16.4(c) of the Customer Contract.

Optional Conditions - Part 5:  Modifications and Upgrades

1. Part 5 applies if Modifications and Upgrades is:
1. marked in Item 18 of the Customer Order; and 
2. relevant to the Goods and Services described in Item 3 of the Customer Order and the Statement of Works.

Definitions

2. The following definitions apply to this Part 5:
1. Designated Operating Environment: means the particular hardware and software environment in which product software, licensed software or Developed Software is to be used by the Customer;
2. Developed Software:  means:
1. software that is to be developed; or
2. licensed software or product software that is to be customised or modified,

under the Statement of Works.

3. Development Services: means modifications and upgrades provided by DigiDevs to produce a Software Solution for the Customer.
4. Software Solution:  means a product that is developed or modified and which is created by DigiDevs, as described in the Statement of Works.

Service Period

9. DigiDevs will to provide Development Services for:
1. a specific servicing period if one is nominated in the Statement of Works; or 
2. for the Term if a specific servicing period is not nominated.
10. DigiDevs agrees to develop and install a Software Solution (if applicable) and will test the Software Solution to ensure it is in conformity with the Statement of Works, any service level standards, and any applicable specifications.
11. DigiDevs’s methodology for developing a Software Solution will:
1. identify and control software components of, and changes to, the Software Solution to maintain the integrity and traceability of the Software Solution at all stages of development;
2. ensure control, development and supply of documentation for the Software Solution;
3. ensure that the Software Solution is written and documented, as far as practicable, in a way which would enable future modification;
4. reference and document procedures for corrective action for the Software Solution and associated documentation prior to acceptance by the Customer including:
1. adoption of a system to report problems and deficiencies;
2. examination of problems and preparing deficiency reports to determine causes, and preparing and documenting any corrective measures;
3. analysis of any deficiency trends to ensure the Software Solution conforms with the Statement of Works and any specifications;
4. review of corrective measures to determine their effectiveness; and
5. provision for ensuring that timely corrective action is taken by reviewing deficiencies and tracking their clearance.

3. Where the Customer Contract provides that DigiDevs owns the Intellectual Property Rights in any New Material, and the New Material is subsequently licensed to the Customer, DigiDevs will:
1. in circumstances where the Software Solution involves a development of a source code, provide the source code to the Customer in a format which is suitable for use in the Customer’s Designated Operating Environment; and
2. inform the Customer as to the nature and use of software tools, methodologies or other devices owned by DigiDevs or any other party, in the production of the Software Solution so that the Software Solution can be maintained and enhanced.

Optional Conditions - Part 6:  Data Services

1. Part 6 applies if Data Services is:
1. marked in Item 18 of the Customer Order; and 
2. relevant to the Goods and Services described in Item 3 of the Customer Order and the Statement of Works.

Definitions

2. The following definitions apply to Part 6:
1. Customer Data:  means the data specified in the Statement of Works
2. Data Migration Software: means the software created or procured for the purposes of carrying out a Data Conversion and Migration.
3. Data Services: mean the Services specified in the Statement of Works in connection with Customer Data and may include Data Cleansing, Data Conversion and Migration and Data Warehousing.

Service Period

3. DigiDevs agrees to provide Data Services for:

1. a specific servicing period if one is nominated in the Statement of Works; or 
2. for the Term if a specific servicing period is not nominated.

Data Cleansing

4. If Data Cleansing is specified in the Statement of Works as a required Data Service, DigiDevs will cleanse the Customer Data to achieve accuracy and consistency in the Customer Data by:
1. eliminating duplicate records;
2. correcting misspellings and errors;
3. ensuring that there are consistent descriptions, punctuation, and syntax;
4. resolving any other accuracy and consistency issues in relation to the content; and
5. undertaking any other relevant actions, as specified in the Statement of Works.

Data Conversion and Migration

5. If Data Conversion and Migration is specified in the Statement of Works as a required Data Service, DigiDevs will:
1. assess and define the situation;
2. develop a Data Conversion and Migration strategy that is appropriate for the Customer’s needs and have it approved by the Customer; and
3. carry out all activities reasonably necessary under the Data Conversion and Migration strategy for the conversion and migration of the Customer Data (including developing or using any Data Migration Software if applicable).
6. If specified in the Statement of Works, the Customer will extract and provide the Customer Data to DigiDevs for the purposes of completing the Data Conversion and Migration.

Data Warehousing

7. If Data Warehousing is specified in the Statement of Works as a required Data Service, DigiDevs will:
1. assess and define the Customer’s requirements;
2. develop a Data Warehousing strategy that is appropriate for the Customer’s needs and have it approved by the Customer; and
3. carry out all activities reasonably necessary under the Data Warehousing strategy for establishing the Data Warehouse; and
4. manage the Data Warehouse once it is established.
8. DigiDevs will ensure the Data Warehouse:
1. provides a consolidated view of the Customer Data;
2. promotes data integration between people, applications and processes;
3. simplifies, cleanses and enriches the Customer Data;
4. is specifically structured for dynamic queries, facilitates analytical processing and encourages widespread ad hoc reporting;
5. enables the Customer to run efficient queries over data;
6. improves query performance and response times;
7. reduces data processing from the Customer’s operational environment; and
8. performs any other function specified in the Statement of Works.

Optional Conditions - Part 7:  Other Services

1. Part 7 applies if Other Services is:
1. marked in Item 18 of the Customer Order; and 
2. relevant to the Goods and Services described in Item 3 of the Customer Order and the Statement of Works.

Definitions

2. The following definitions apply to Part 7:
1. Other Services: includes pay per click marketing and social media marketing.

Service Period

9. DigiDevs agrees to provide Data Services for:

3. a specific servicing period if one is nominated in the Statement of Works; or 
4. for the Term if a specific servicing period is not nominated.

Customer Obligations

2. Where DigiDevs has been engaged by the Customer to provide Other Services, the Customer warrants that all data and content that is provided in connection with those services will not be:
1. unlawful or obscene;
2. discriminatory, defamatory, inflammatory, intimidatory or profane;
3. is sexually-oriented or contains sexual references; or
4. violates or infringes another person’s rights (including rights of privacy and publicity, and Intellectual Property Rights).
3. The Customer also indemnifies and releases DigiDevs from and for all Loss resulting from any Claim which arises because of:
1. the Customer’s breach of clause 2 of this Part 7;
2. any inaccuracy or misrepresentation that is published in by the Customer;
3. the infringement of any third party Intellectual Property Rights by the Customer;
4. the breach of any laws in connection with the publication of marketing by or for the Customer; 
5. a failure by the Customer to meet its obligations to any third party in connection with any marketing material that is published by way of the Goods and Services provided under this Agreement; and
6. any other act or omission that results in the Customer being in default of any third party arrangement directly related to any other material that is published by way of the Goods and Services provided under this Agreement.