1.1   These Terms and Conditions are read in conjunction with the Proposal, Service & Maintenance Agreement and/or Software Licensing Agreement confirmed between Rauland Australia Pty Ltd (Rauland) and Customer. Together, these documents record our Agreement in relation to the equipment, software and services to be provided by Rauland.

1.2   If there is an inconsistency between a provision in the Terms and Conditions and a provision in the Proposal, Service & Maintenance Agreement or Software Licensing Agreement, then the provision in the Terms and Conditions prevails to the extent of the inconsistency.

2.1   Rauland may provide:
(a) Equipment;
(b) Software;
(c) Services; and
(d) Documentation
(“Deliverables”) on the terms and conditions of the Agreement.

2.2   Unless otherwise expressly set out in the Agreement:

(a) all Equipment is sold to the Customer; and

(b) all Software and all Documentation is licensed to the Customer,

in each case on the terms and conditions set out in the Agreement.

3.1   If a Service has a Service Level, then Rauland will meet the Service Level for that Service.

3.2  Customer acknowledges that the systems that Rauland uses (and may in the future use) to provide Services, and to store related data (including Customer’s data and any data from End Users), may not be located on Rauland’s premises, may be cloud-based, and may be located anywhere in the world.

4.1  Customer may only use the Deliverables as permitted by the Agreement and only within the relevant Scope of Use. Customer must not cause, or permit, any person to use a Deliverable in a way that is not permitted by the Agreement or that is outside the relevant Scope of Use.

4.2  Customer must (at its cost):

(a) provide any equipment* needed to access or use a Deliverable (including upgrading the equipment where necessary to access or use the Deliverable);

(b) provide any software** needed to access or use a Deliverable (including upgrading the software where necessary to access or use the Deliverable); and

(c) provide anything else*** needed to access or use a Deliverable. This obligation includes providing equipment and software installation, configuration and integration services and other services – including Internet access services. It also includes upgrading anything (including Internet access services) where necessary to access or use a Deliverable.

* does not apply to any Equipment that Rauland is providing.

** does not apply to any Software that Rauland is providing.

*** does not apply to any Services that Rauland is providing.

4.3  Customer is responsible for all use (authorised or unauthorised) of a Deliverable by anyone other than Rauland.

4.4  Customer must immediately notify Rauland as soon as Customer becomes aware (or ought to have become aware) of anything (including an event or issue) that has compromised (or could compromise) the security of a Deliverable or the use of a Deliverable. This includes: (a) any security event or issue that has affected (or could affect) someone’s privacy; (b) any form of unlawful access to data or a Deliverable that contains medical or personal information; (c) theft of a Deliverable that contains medical or personal information; or (d) encryption of data that contains medical or personal information.

4.5  Unless otherwise expressly set out in the Agreement, Customer must meet all of its obligations under the Agreement at its own cost.

5.1  Customer must pay the Fees in accordance with the relevant payment terms. If a Fee does not have a payment term, then the fee must be paid within 14 days after receipt of invoice.

6.1  Subject to clause 6.2, where GST is imposed on any supply made under this agreement by one party (Supplying Party) to another party (Receiving Party), the Receiving Party must pay or provide the GST Exclusive Consideration for the supply and, in addition to and at the same time as the GST Exclusive Consideration is payable or to be provided, an additional amount calculated by multiplying the value of that GST Exclusive Consideration (without deduction or set-off) by the prevailing GST rate.

6.2  The Receiving Party is not required to pay any amount of GST to the Supplying Party unless the Supplying Party has provided a Tax Invoice.

6.3  If the amount of GST recovered by the Supplying Party from the Receiving Party differs from the amount of GST payable at law by the Supplying Party (or an entity grouped with the Supplying Party for GST purposes) in respect of the supply, the amount payable by the Receiving Party to the Supplying Party will be adjusted accordingly.

6.4   Where one party (Payer) is liable to reimburse another party (Payee) for any expenditure incurred by the Payee (Expenditure), the amount reimbursed by the Payer will be the GST exclusive Expenditure plus any GST payable to the Payee by the Payer under clause 6.1.

6.5   Customer is responsible for any taxes, imposts, deductions, levies, charges, withholdings and duties imposed by any Government Agency (including stamp, customs and transaction duties) arising in connection with this agreement, together with any penalties, fines, expenses and interest arising in connection with those amounts, excluding GST.

7.1   This agreement commences on the Effective Date and continues until it is terminated.

8.1    A party may, by notice, immediately terminate this agreement if the other party is or becomes insolvent.

8.2    Define material breach – payments not being received, ongoing failure to attempt to perform obligations. On termination of this agreement (for any reason), all Services are taken to have been cancelled.

8.3    Subject to the above,…On the cancellation of a Service, Customer must immediately pay to Rauland all amounts owing for, and in connection with, that Service up to the date of cancellation without any deductions or set off of any kind.

9.1    Clause 4.1 sets out the rights that Customer has in relation to Deliverables. Rauland reserves all rights in the Deliverables that are not expressly granted as set out in clause 4.1.

9.2    Subject to clause 9.3, if use of any Rauland Licensed Software as permitted by clause 4.1 infringes the Intellectual Property Rights of a third party, then Rauland indemnifies Customer against all damages and reasonable legal costs incurred as a result of that claim. To avoid doubt, this indemnity does not apply to any other Deliverables even if they are used with Rauland Licensed Software.

9.3    Customer must:

(a)    notify Rauland in writing as soon as practicable of any alleged infringement relating to Rauland Licensed Software;

(b)    not say or do anything that may prejudice Rauland’s legal position or result in Rauland incurring any liability relating to Rauland Licensed Software; and 

(c)    without limiting (b), not pay any amounts to any person in relation to the claim without obtaining Rauland’s prior written consent.

9.4    Customer must:

(a)    not use a Deliverable on behalf of, or for the benefit of, another person (which includes using a Deliverable to provide any form of outsourcing, application services provider and/or bureau-type services);

(b)    not alter or remove any proprietary notices or labels on, or relating to, any Deliverable;

(c)    not reverse engineer (or attempt to reverse engineer) any Deliverable (unless Customer has a statutory right to do so in which case it must only do so to the extent permitted by that statutory right);

(d)    protect Deliverables in its possession, custody or control with measures adequate to prevent any disclosure or use in breach of this agreement;

(e)    comply with all laws in relation to the Deliverables; and

(f)    not cause or permit any person to do any of the things referred to in (a) to (c).

9.5    To avoid doubt, and despite any other provision:

(a)    other than as expressly set out in the Agreement, Customer does not obtain any ownership rights, or rights to use, anything created by or on behalf of Rauland using any ideas, material or requirements provided by or on behalf of Customer; and

(b)    clause 9.5(a) applies in all cases (including where Customer has paid Rauland (in whole or in part) to create anything covered by that clause).

9.5    To avoid doubt, and despite any other provision:

(a)   other than as expressly set out in the Agreement, Customer does not obtain any ownership rights, or rights to use, anything created by or on behalf of Rauland using any ideas, material or requirements provided by or on behalf of Customer; and

(b)   clause 9.5(a) applies in all cases (including where Customer has paid Rauland (in whole or in part) to create anything covered by that clause).

10.1    If a party receives Confidential Information from the other party under or in connection with this agreement, then the receiving party must keep the information confidential and only use it for the purpose of meeting its obligations or exercising its rights under this agreement.

10.2    A receiving party may not disclose Confidential Information of the other party to any person except:

(a)    to the receiving party’s (or the receiving party’s Affiliates’) employees, contractors, legal advisers, auditors and other consultants who require it for the purposes of this agreement;

(b)    with the prior written consent of the other party;

(c)    if the receiving party is required to do so by law or the rules of a stock exchange; or

(d)   if the receiving party is required to do so in connection with legal proceedings relating to this agreement.

10.3    Despite any other provision, Rauland and any of its Affiliates may use, and internally disclose, any ideas, functionality and requirements that form part of Customer’s Confidential Information (IFR Material), to change or create current or future products or services (whether for Customer, anyone else or otherwise).

10.4    Customer acknowledges that when such a product or service is provided to a third party, or when a document that describes any of the functionality provided (or to be provided) by such a product or service is provided to a third party, the idea, functionality or requirement may be indirectly disclosed to that third party.

10.5   To avoid doubt and despite any other provision:

(a)    clause 10.3 survives the expiry, or termination (for any reason) of this agreement;

(b)    Rauland is not required to return, destroy or hand back any IFR Material (whether on request, on expiry, on termination (for any reason) or otherwise); and

(c)    Customer is not entitled to any form of payment or compensation (of any kind) for granting the rights in clause 10.3.

10.6    Each party must act in accordance with the Privacy Laws to the extent that they apply to it.

10.7    If Personal Information of an individual is disclosed to Rauland under or in connection with this agreement (which includes, to avoid doubt, any Personal Information sent by an End User), then Customer warrants that it has notified the individual of, and obtained the individual’s consent to all of the uses that Rauland may make of the Personal Information in order to meet its obligations or exercise its rights under this agreement.

11.1    To the maximum extent permitted by law, Rauland excludes: (a) all warranties of any kind relating to this agreement or its subject matter (other than any warranties expressly set out in the Agreement), whether implied, statutory or otherwise; and (b) all implied terms of any kind relating to the Agreement or its subject matter (whether statutory or otherwise) that impose or create any form of obligation or liability on Rauland.

11.2    Subject to clause 11.4, Rauland excludes all liability for Agreed Excluded Losses.

11.3    Subject to clause 11.4, Rauland’s total liability for loss or damage of any kind not excluded by other provisions in the Agreement, however caused, whether in contract, tort (including negligence), equity, under any statute or otherwise arising from or relating in any way to the Agreement or its subject matter is limited in aggregate for any and all claims that arise in a Contract Year to the Fees paid by Customer in respect of the respective Agreement for that Contract Year (excluding all taxes).

11.4    If a statute implies in the Agreement, or imposes, a term that cannot be excluded, then Rauland’s liability for breach of the term will, if permitted by law, be limited to one of the following remedies (at Rauland’s option): 

(a)   if the breach relates to goods: (i) replacing the goods or supplying equivalent goods; (ii) repairing the goods; (iii) paying the cost of replacing the goods or of acquiring equivalent goods; or (iv) paying the cost of having the goods repaired; and

(b)   if the breach relates to services: (i) resupplying the services; or (ii) paying the cost of resupplying the services.

To avoid doubt, Rauland is not required to offer any of the remedies in (a) or (b) above.

11.5    Rauland’s liability, however caused, for loss or damage of any kind in contract, tort (including negligence), equity, under any statute or otherwise arising from or relating in any way to the Agreement or its subject matter is reduced to the extent that the Customer (or any of its Affiliates, contractors or customers) caused or contributed to the loss or damage.

12.1    If a dispute arises under or in relation to this agreement, then (other than as provided for in clause 12.5) before commencing any form of legal action, the parties must comply with the obligations in this clause.

12.2    The disputing party must give the other party a notice identifying the dispute and requiring it to be resolved in accordance with this clause 12. To avoid doubt, a notice of dispute is not required to contain any information that would (or may) prejudice a party’s legal position.

12.1 If a dispute arises under or in relation to this agreement, then (other than as provided for in clause 12.5) before commencing any form of legal action, the parties must comply with the obligations in this clause.

12.2 The disputing party must give the other party a notice identifying the dispute and requiring it to be resolved in accordance with this clause 12. To avoid doubt, a notice of dispute is not required to contain any information that would (or may) prejudice a party’s legal position.

12.3    If the dispute is not resolved within 14 days after a notice of dispute has been delivered, then the parties’ Executives must meet to attempt to resolve the dispute. If the dispute is not resolved between Executive parties within the 14 days following, then either party may proceed to mediate the dispute under the Australian Disputes Centre (ADC) guidelines for mediation operating at the time the notice of dispute was delivered. To avoid doubt, this clause 12.3 applies in all cases (including where a party refuses to meet or fails to attend a (or any) meeting).

12.4    If the dispute is not resolved within 44 days after the notice of dispute has been delivered, then:

(a)   it shall be referred to and finally resolved by arbitration administered by ADC; and

(b)   the arbitration shall be conducted in [Sydney] in accordance with the ADC Rules for Domestic Arbitration operating at the time the dispute is referred to ADC.

12.5    This clause 12 does not prevent a party from seeking injunctive or other urgent interlocutory relief.

12.6    To avoid doubt, this clause 12 applies to all disputes including disputes related to the supply or use of a Deliverable.

13.1    This agreement is governed by the law in force in New South Wales, Australia. Each party submits to the non-exclusive jurisdiction of the courts of New South Wales, Australia. The United Nations Convention on Contracts for the International Sale of Goods (The Vienna Convention) does not apply to this agreement.

13.2    Unless expressly stated otherwise in this agreement, neither party may assign its rights, or otherwise deal with any of its rights or obligations, under this agreement without the other party’s prior written consent and any such dealing is void and of no effect.

13.3    Rauland may: (a) subcontract the performance of any of its obligations under this agreement without notice or consent; and (b) novate this agreement to a Rauland Affiliate by notice and without consent. To avoid doubt, a party remains responsible for the performance of any obligations that it subcontracts.

13.4    The following survive the expiry, or termination (for any reason), of the Agreement: (a) clauses [to be inserted when agreement is finalised] of the Terms and Conditions]; (b) any provisions in a Schedule that are expressed to survive; and (c) any accrued rights or remedies. IP Confidentiality. QITC.

13.5    The Agreement constitutes the entire Agreement between the parties relating to its subject matter and supersedes all prior understandings, arrangements and agreements between the parties (including, to avoid doubt, any representations made concerning functionality or performance of a Deliverable regardless of when or how they were made – including (without limitation) as part of a tender process).

13.6    A provision of the Agreement or a right created under it, may not be varied or waived except in writing, signed by the party or parties to be bound. The failure of either party at any time to enforce any of the terms or provisions of the Agreement, or to exercise any right, does not constitute a waiver of any such right or affect the party’s privilege to enforce that right.

13.7    Unless expressly stated otherwise in the Agreement, all notices, certificates, consents, approvals, waivers and other communications in connection with the Agreement (Notices) must be in writing and signed by an authorised officer of the sender. Emails, postal notice, signed. – impact on dispute resolution clause.

13.8    Notices take effect from the time that they are received unless a later time is specified.

13.9    Other than as expressly set out in this agreement, no variation of any provision of theAgreement is effective unless it is agreed in writing, signed by the parties.

13.10    A party is not in breach of the Agreement (other than a breach for failure to pay money) and is not liable to the other party for a delay or a failure to perform an obligation (other than an obligation to pay money) if the breach or liability resulted from a Force Majeure Event.

13.11    Despite any other provision, if Customer does not meet an obligation under thie Agreement and that delays Rauland from meeting one of its obligations (Affected Obligation), then (without limiting any other right or remedy) the time for Rauland to perform the Affected Obligation is automatically extended by the amount of the delay and may be subject to variation of Fees.

13.12    Other than as expressly set out in thes Agreement, the Agreement does not confer any rights or benefits upon any third parties (including to avoid doubt and without limitation on any Affiliate of Customer) and any third party rights or benefits are excluded. To avoid doubt, this exclusion applies to rights or benefits of any kind, however arising, including under any form of third party beneficiary law or legislation.

13.13    Customer acknowledges and agrees that no Customer terms of any kind in any form (including in any form of tender, purchase order or correspondence) that are provided to Rauland (or referred to in any way) and that cover any or all of the subject matter of the Agreement (including, to avoid doubt, the Deliverables, Service Levels, Fees and Customer obligations) have any application and all such terms are null and void.

13.14    Customer acknowledges and agrees that clause 13.13 applies: (a) to Customer terms provided (or referred to) before, on or after the date of the Agreement; and (b) even if Rauland accepted the Customer terms (including accepting them orally, in writing or by conduct).

13.15    To avoid doubt, the parties agree that clauses 13.13 and 13.14 apply even if the Customer terms contain provisions that deems the terms to be accepted by Rauland if Rauland does a particular thing (for example, provide goods or services, or accept payment) and Rauland does that particular thing.

14.1    These meanings apply unless the contrary intention appears:

Affiliate, of a party, means a holding company of that party, a subsidiary of that party, or a subsidiary of a holding company of that party.

Agreed Excluded Losses means:

(a)   loss of revenue (whether direct, indirect, consequential or otherwise);

(b)   loss of profits (whether direct, indirect, consequential or otherwise);

(c)   loss of opportunity or goodwill (whether direct, indirect, consequential or otherwise);

(d)   loss of anticipated savings or business (whether direct, indirect, consequential or otherwise); and

(e)   any costs or expenses incurred in connection with (a) to (d),

however caused, whether in contract, tort (including negligence), equity, under any statute or otherwise, arising from or related in any way to the Agreement or its subject matter.

Agreement these Terms and Conditions in conjunction with the Proposal, Service & Maintenance Agreement and/or Software Licensing Agreement confirmed between Rauland Australia Pty Ltd (Rauland) and Customer.

Confidential Information means all confidential, non-public or proprietary information (regardless of how the information is stored or delivered) that is disclosed by a party (or an Affiliate of a party) to the other party (or to an Affiliate of the other party) in connection with this agreement or its subject matter, before, on or after the date of the Agreement, but does not include information:

(a)   that ceases to be confidential (including by becoming part of the public domain) through no act or omission of the other party;

(b)   which the receiving party can prove by contemporaneous written documentation was already known to it at the time of disclosure by the disclosing party (unless such knowledge arose from disclosure of information in breach of an obligation of confidentiality); or

(c)   which the receiving party acquires from a source other than the disclosing party (or any of its employees, contractors or agents) where such source is entitled to disclose it.

Rauland’s Confidential Information is taken to include the terms and conditions of the Agreement (including Service Levels, pricing (including Fees) and Specifications).

Contract Year means consecutive 12 month periods commencing on the Effective Date. For example, if the Effective Date is 1 November 2022, then Contract Year one is from 1 November 2022 to 31 October 2022, Contract Year two is from 1 November 2022 to 31 October 2023 and so on.

Customer means the company who purchases Rauland Deliverables.

Deliverable has the meaning given in clause 2.1.

Documentation means any documentation (whether in paper form, electronic form or otherwise) that is identified in the Agreement and includes but is not limited to:

(a) Rauland Licensed Software Documentation;
(b) Sublicensed Software Documentation;
(c) Third Party Licensed Software Documentation;
(d) Training Documentation
(e) Design Documentation
(f) Project Plan

(g) Commissioning and Testing Plans

Effective Date means the earlier of:

a)   the date set out in the Proposal, Service & Maintenance Agreement or Software Licensing Agreement (the Agreement); or

(b)   the date on which Rauland first provides any part of a Deliverable.

End User means any person (other than Rauland or Customer) who uses a Deliverable.

Equipment means any equipment that appears in the equipment table of the Agreement.

Fees means the fees specified in the pricing schedule of the Agreement.

Force Majeure Event means any event or circumstance beyond a party’s reasonable control. Without limiting what an event or circumstance beyond a party’s reasonable control is, the parties agree that the following are taken to be events or circumstances beyond a party’s reasonable control: act of God, war, flood, fire, storm, explosion, civil disobedience, tempest, theft, vandalism, riots, terrorist actions, wars anda shortage of supply.

Terms and Conditions means clauses 1 to 14.

Government Agency means any governmental, semi-governmental, administrative, fiscal, judicial or quasi-judicial body, department, commission, authority, tribunal, agency or entity.

GST means the tax imposed by the GST Act and the related imposition Acts of the Commonwealth.

GST Act means the A New Tax System (Goods and Services Tax) Act 1999, as amended from time to time.

GST Exclusive Consideration means any consideration payable under this agreement that either does not include an amount referable to GST or, if the consideration is inclusive of GST, is that consideration excluding the amount referable to GST using the rate of GST in force at the time the parties agreed on the consideration.

Intellectual Property Rights means all current and future intellectual property rights of any kind in any jurisdiction anywhere in the world (whether registered, unregistered or otherwise) including copyright (including rights in computer software and databases), moral rights, patents, trade marks, circuit layout rights, designs, plant breeder rights and geographical identification rights.

Minimum Requirements means the minimum requirements for the equipment, software and services needed to access or use a Deliverable. Minimum Requirements are available from Rauland at any time on request.

Personal Information has the meaning given to it, or to any other equivalent term, in the Privacy Laws.

Privacy Laws means any law which affects privacy and is relevant to this agreement, together with any mandatory regulation, codes of conduct, directive, order or similar made or issued under such laws, provided that it is relevant to this agreement.

Scope of Use, for a Deliverable, means the scope of use in the Agreement that the Deliverable appears in.

Service means a service that is identified in the Agreement as:

(a) Implementation, Installation and Training Services;
(b) Maintenance and Support;
(c) Software As A Service;
(d) Managed Service; or
(f) other professional service.