Terms and Conditions

23-Jun-2020

These terms and conditions will govern all services that Sensei agree to provide to You or on your behalf, unless otherwise expressly agreed.

1. Definitions and Interpretation

Unless the context otherwise requires the following words have the following meaning:-

1.1. “Existing Material” means Intellectual Property belonging to, or controlled by, Us that was in existence prior to the commencement date of this Agreement or the commencement of Services provision by Us to You.

1.2. “Fees” means the fees set out in this Sensei Proposal;

1.3. “Force Majeure” means an event beyond the reasonable control of the affected party, which occurs without the fault or negligence of the affected party. This includes, but is not limited to, act of God, fire, flood, act of violence, terrorism, pandemic, or any similar occurrence.

1.4. “Intellectual Property Rights” means patents, inventions (whether patentable or not), copyrights, moral rights, design rights, trademarks, trade names, business names, service marks, brands, logos, service names, trade secrets, know-how, domain names, database rights and any other intellectual property or proprietary rights (whether registered or unregistered, and whether in electronic form or otherwise) including rights in computer software, and all registrations and applications to register any of the aforesaid items, rights in the nature of the aforesaid items in any country or jurisdiction, and any rights in the nature of unfair competition rights.

1.5. “New Material” means any material created by us for the purposes of this proposal or contract;

1.6. “Payment Terms” means the lesser of 30 days from the date of issue on a correctly rendered invoice from Us to You, or the terms specified within the proposal or contract agreed between two parties

1.7. “Proposal” means a proposal provided by us to you (including all attachments) and includes any written variations to that proposal agreed to by us;

1.8. “Services” means the services set out in the Sensei Proposal and any other services which we agree to provide;

1.9. “Services Program” means the program set out in the Sensei Proposal (if any) for delivery of the Services;

1.10. “You” and “Your” means the Customer identified in the Sensei Proposal;

1.11. “Your Responsibilities” means your responsibilities as specified in the Sensei Proposal and these terms and conditions; and

1.12. “We”, “us” and “our” means Sensei.

2. Provision of Services

2.1. We will provide the Services to you in accordance with any applicable Services Program.

2.2. We warrant that

  • 2.2.1. the Services will be provided:

    • 2.2.1.1. in a diligent and professional manner;

      • 2.2.1.2. utilising suitably skilled employees;

      • 2.2.1.3. utilising sufficient resources; and

      • 2.2.1.4. in accordance with sound and accepted professional practice existing at the date of your acceptance of the Proposal.

  • 2.2.2. the Services provided by us to you in connection with this agreement under a fixed price services provision, and any product resulting from those Services, will be fit for the purposes made known to us by you, for a period of 30 days after the date on which the Services are provided by us to you.

2.3. Where Services are provided on a time and materials basis:

  • 2.3.1. we will create and maintain proper records of the time worked by each of our employees and we will provide copies of those records or a summary of those records to you on request. Unless otherwise agreed by us, in calculating our time and materials based Fees, the time spent will include all time allocated to providing that Service including travelling time;

  • 2.3.2. the risk in the time taken to deliver an outcome is worn by You. If time taken to deliver an outcome takes longer to achieve than originally estimated within a Proposal, additional charges may be reasonably incurred and charged to You. We explicitly do not warrant that an outcome or deliverable will be reached within a certain time period under a time and materials engagement model. For the avoidance of doubt, this clause 2.3.2 also applies to defect resolution.

2.4. If we have specified that any particular employees will be involved in the provision of the Services, we will endeavour to ensure that the relevant Services are provided by the nominated employees. If any named employee is not available or able to perform any of the Services, we will identify a suitably skilled alternative employee to perform those Services.

2.5. We will endeavor to provide the Services without unreasonable delay but we will not be liable for any failure or delay in the provision of the Services which is caused or contributed to by you or your contractors or an event outside our direct reasonable control.

2.6. Our provision of the Services is subject to you:

  • 2.6.1. complying with Your Responsibilities as and when reasonably required by us; and

  • 2.6.2. paying Fees to us in accordance with the Payment Terms.

3. Payment for Services

3.1. You must pay us the Fees in accordance with the provisions of the Payment Terms.

3.2. Subject to clause 3.3, payment of Fees must not be refused or delayed.

3.3. If a genuine dispute arises regarding the amount of a Fee, you may suspend payment of the disputed amount pending resolution of the dispute but you must pay all other amounts in accordance with the Payment Terms.

3.4. If you fail to pay any amount to us by the due date on a properly rendered invoice, you must pay interest on the amount due calculated from the due date until the date of payment at a rate which is equivalent to the prevailing Reserve Bank of Australia cash rate.

3.5. If any new or varied tax is introduced (other than on our income) which increases our costs or reduces our profit in providing Services, we may make an appropriate adjustment to our Fees.

3.6. Unless otherwise stated, any Fees quoted within this proposal are exclusive of expenses for travel outside of Melbourne, Sydney, Adelaide or Brisbane CBD. If expenses are reasonably incurred for travel outside of these areas, these will be invoiced to You on a weekly basis as reasonably incurred.

  • 3.6.1. The expenses referred to in this clause 3.6 may include, but are not exclusive to, airfares, accommodation, per diem daily expenses, taxi fares, and car parking allowances.

3.7. With regards to GST;

  • 3.7.1. Unless stated otherwise, each consideration or payment obligation in this Agreement is exclusive of GST.

  • 3.7.2. “GST” has the meaning given to it in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).

  • 3.7.3. Sensei’s must fulfil its legal requirements pertaining to GST as outlined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).

4. Variation of Services to be Provided

4.1. If we suggest or if you request a variation of the Services to be provided pursuant to the Sensei Proposal including (without limitation) the provision by us of additional services, we will provide you with a written proposal specifying the cost and other terms upon which we would be prepared to agree to that variation.

4.2. If we consider that the preparation of a variation proposal will require significant effort, we may require you to agree to pay us for preparing the variation proposal

4.3. Neither you nor we are obliged to agree to any variation, but you and we agree to review and discuss any variation proposal in good faith.

5. Intellectual Property Rights & Confidentiality

Unless otherwise expressly stated in the Sensei Proposal:

5.1. Intellectual Property Rights in all New Material will vest in us as those rights are created.

5.2. We hereby grant You a perpetual, non-exclusive, royalty-free licence to use, reproduce, adapt, and modify the Intellectual Property Rights in all New Material for the explicit purpose of the project or for internal purposes.

  • 5.2.1. The licence granted under this Clause 5.2 excludes the right to commercially exploit the Intellectual Property Rights in New Material.

5.3. Clause 5.1 does not affect the Intellectual Property Rights in Existing Material. We grant to You a non-exclusive and non-transferable licence to exercise the Intellectual Property Rights in Existing Material and to sublicence these rights. To the extent that any Intellectual Property Rights in Existing Material are owned by a third party, We must procure for You a licence on the same terms from that third party.

5.4. We warrant that our provision of the Services will not infringe the Intellectual Property Rights of any third party and we agree to indemnify you against any liability you may reasonably sustain if our provision of the Services infringes the Intellectual Property Rights of any third party. If any aspect of the Services infringes a third party’s Intellectual Property Rights, we may arrange a non-infringing work-around or obtain a license at our cost permitting your use of the relevant Services.

5.5. If you have provided us with any material for use in connection with the provision of the Services, you warrant that our use of that material will not infringe the Intellectual Property Rights of any third party and you agree to indemnify us against any direct liability we may reasonably sustain to the extent that our use of the material infringes the Intellectual Property Rights of any third party.

5.6. You will give us notice of any infringement of our copyright or any other right of ours that comes to your attention.

5.7. We must treat as confidential all information (other than information in the public domain) which you provide to us including (without limitation) information relating to your business operations. We agree not to disclose such information to any other party without your prior written permission unless required to do so by law. We may only use such information and may only disclose this information to our employees to the extent necessary to enable us to provide the Services.

5.8. You must treat as confidential all information (other than information in the public domain) which we provide to you including (without limitation) information relating to our software and systems, our pricing and our business operations. You agree not to disclose such information to any other party without our prior written permission unless required to do so by law. You may only use such information and may only disclose this information to your employees to the extent necessary to give effect to the objectives identified in the Proposal.

5.9. Upon termination, the disclosing party may require the receiving party to return all copies of confidential information received from the disclosing party.

5.10. Privacy obligations

  • (a) Nothing in this agreement derogates from any obligation which either party may have under the Privacy Act 1988 (Cth) (Privacy Act), or any other Act, regulation or other legislative instrument requiring secrecy or confidentiality in dealing with information.

  • (b) Where we deal with personal information when, in connection with this agreement we agree:

    • (i) to comply with any applicable privacy and data protection laws;

    • (ii) to use or disclose personal information obtained during the course of providing Services under this agreement, only for the purposes of this agreement;

    • (iii) not to do any act or engage in any practice that would breach an IPP, NPP or APP under the Privacy Act, which if done or engaged in by an agency or by you, would be a breach of that IPP, NPP or APP;

    • (iv) to carry out and discharge the obligations contained in the IPPs as if it were an agency under the Privacy Act;

    • (v) not to use or disclose personal information or engage in an act or practice that would breach the Privacy Act where a particular section, NPP or APC or APP is applicable us;

    • (vi) to immediately notify you if we become aware of a breach or possible breach of any of the obligations contained in, or referred to in, this clause 5.10;

    • (vii) to ensure that all of our employees who are required to deal with personal information for the purposes of this agreement are made aware of our obligations set out in this clause 5.10.

  • (c) We agree to indemnify you in respect of any loss or liability suffered or incurred by you which arises directly or indirectly from a breach of any of our obligations under this clause 5.10.

  • (d) In this clause 5.10, the terms ‘agency’, ‘approved privacy code’ (APC), ‘Australian Privacy Principle’ (APP), ‘Information Privacy Principle’ (IPP), and ‘National Privacy Principle’ (NPP) and ‘personal information’ have the same meaning as they have in the Privacy Act.

  • (e) The provisions of this clause 5.10 shall survive and continue to be binding on us notwithstanding termination.

5.11. The provisions of this clause 5 shall survive and continue to binding upon you and us, notwithstanding termination.

6. Warranties & liability

6.1. If any warranty or condition is implied by the Competition and Consumer Act 2010 or other relevant legislation which may not be excluded or restricted (a “non-excludable term”) our liability for any breach of a non-excludable term is limited solely to the re-supply of the relevant Service or payment to you of the cost of having the Service provided again (at our option).

6.2. Apart from the express warranties contained in these terms and conditions and subject to any non-excludable terms, all warranties with respect to the Services are hereby expressly excluded.

6.3. If circumstances arise where you are entitled to claim damages from us notwithstanding the provisions of these terms and conditions, our liability to you for the aggregate of all such claims (regardless of the basis on which you are entitled to claim from us including, without limitation, negligence) is limited to the value of all Fees payable by you in the 12 months prior to relevant event occurring.

6.4. The limitation in clause 6.3 does not apply to our liability for death, personal injury or infringement of third party Intellectual Property Rights, gross negligence, wrongful acts or omissions, and breach of confidentiality obligations and privacy obligations.

6.5. Insurance

  • 6.5.1. In connection with the Services we must have and maintain:

    • (a) Workers’ compensation insurance for the amount required by relevant state or territory legislation;

    • (b) Public liability insurance for $10,000,000 (ten million dollars) or more per claim;

    • (c) Professional indemnity insurance for $1,000,000 (one million dollars) or more per claim.

  • 6.5.2. We must, on request from you, provide relevant confirmation of insurance documentation from its insurers or insurance brokers certifying that it has insurance as required by clause 6.5.1.

6.6. While we may provide you advice (both technical and non-technical) around a potential approach to software licencing, the procurement of software licences, and the implementation of software licences in your environment (whether for Microsoft, or for other third party software providers), Sensei does not warrant that any software licencing advice provided to you is correct or applicable for your specific software licencing requirements. Sensei requests that you seek confirmation from your licencing provider before acting on the advice provided to ensure it is applicable to your specific situation.

6.7. Neither party will be liable to the other party in any circumstances for any indirect, economic, special or consequential loss or damage, loss of revenue, time, goodwill, data, anticipated savings, opportunity, loss of production and loss of profit in respect of this Agreement or the supply of any goods and/or services.

7. Default

7.1. If a party (the “Defaulting Party”) commits any default with respect to the due observance or performance of any of its obligations under these terms and conditions, then the other party (the “Innocent Party”) may, without prejudice to any other rights the Innocent Party may have, give written notice to the Defaulting Party identifying the default and requiring that the default be remedied (a “Default Notice”).

7.2. If the Defaulting Party fails to remedy a default within 14 days after receipt of a Default Notice or, where the default is not capable of being remedied within 14 days and the Defaulting Party fails within that period to commence to remedy the default or fails to diligently proceed to remedy the default, then the Innocent Party may terminate the arrangements between you and us by written notice to the Defaulting Party.

7.3. A party may terminate the arrangements governed by these terms and conditions by written notice if it reasonably considers that the other party is or is likely to become insolvent.

7.4. If termination occurs, without limiting any of our other remedies, you must pay us for all Services provided up until the date that the termination takes effect. If you have made any pre-payment of Fees, you will only be entitled to a refund of that pre-payment if the Agreement is validly terminated as a result of our breach.

8. Termination

8.1. You may terminate this Agreement (in whole or in part) immediately upon written notice to Us:

  • 8.1.1. if We breach any obligation under this Agreement which is capable of being remedied, but fail to remedy that breach within 14 days of receipt of a notice from you specifying the breach and requiring it to be remedied; or

  • 8.1.2. if We commit a breach of this Agreement which is incapable of being remedied.

8.2. You may terminate this Agreement immediately upon written notice to Us:

  • 8.2.1. if We do anything that materially damages or is likely to materially damage your brand or reputation;

  • 8.2.2. if We or any of Our Personnel commit any act of fraud or dishonesty in relation to this Agreement; or

  • 8.2.3. if an Insolvency Event occurs in relation to Us.

8.3. You may at any time on at least 30 days written notice to Us terminate this Agreement without cause, in which case your sole liability will be to pay Us for all Services (including Deliverables) provided up to the effective date of termination.

8.4. We may terminate this Agreement immediately upon written notice to you if you commit a material breach of an obligation of this Agreement and do not remedy that breach within 30 days of receipt of a notice from Us specifying the breach and requiring the breach to be remedied.

8.5. We may terminate this Agreement immediately upon written notice to you if an Insolvency Event occurs in relation to You.

9. Additional Terms

9.1. A party may not assign or transfer or otherwise deal in any way with any rights or obligations without the written permission of the other party, which must not be unreasonably withheld.

9.2. You shall not, without the prior written consent of Sensei, employ or enter into contractual arrangements with, offer employment or contractual arrangements to, or solicit requests for employment or contracts from, any current or former employee or contractor of Sensei for a period commencing on the acceptance of the Proposal and ending 12 months after termination of all contractual arrangements between you and us. If this clause is breached, we will be eligible to invoice you for 6 months of the base salary of that employee or contractor for reimbursement and replacement costs.

  • 9.2.1. This clause 9.2 shall not apply to: (a) generalised solicitations of employees by use of advertisements or by bona fide search firms that are not targeted at our employees; or (b) our employee independently contacting You without any solicitation on your part.

9.3. No right will be waived by a party except by express written notice signed by that party.

9.4. If any provision of these terms and conditions is found to be invalid, unenforceable or illegal, then that provision will be deemed to be deleted to the extent necessary to remove the invalid, unenforceable or illegal portion and the balance of these terms and conditions will remain binding.

9.5. If any dispute arises between you and us which cannot be resolved by negotiation, you and we will confer and seek to agree the most appropriate mechanism for resolution of the dispute before commencing any proceedings, provided that this provision will not apply where you or we reasonably conclude that injunctive or other urgent proceedings are necessary to protect its position.

9.6. Notices or other formal communications may be given by hand delivery, by mail or by email or facsimile transmission and will be deemed to be received:

  • 9.6.1. in the case of hand delivery, upon delivery;

  • 9.6.2. in the case of mail, three (3) business days after the date of posting the article; or

  • 9.6.3. in the case of email or facsimile, upon completion of transmission (except where transmission is completed after 5:00 pm on a business day, in which case receipt is deemed to occur at 9:00 am on the next business day).

9.7. When accepted, the final version of Proposal is the complete and exclusive statement of the agreement between you and us and it supersedes all prior proposals or agreements, oral or written, and all other communications relating to the subject matter of the Proposal.

9.8. The parties are independent contractors and are not in a partnership or joint venture relationship. Neither you nor we may purport to act on behalf of the other party unless expressly authorised to do so in writing.

9.9. The arrangements between you and us are made in accordance with, and are subject to, the laws of South Australia. You and we submit to the non-exclusive jurisdiction of the Courts of South Australia.

9.10. Any person accepting a Proposal on your behalf warrants that they are duly authorised to do so.

9.11. You hereby grant us the right to identify you as a recipient of our services, solutions, training and applications and use your trademark name and logo in sales presentations, marketing materials and press releases and to develop a customer profile for use by Sensei on www.senseiprojectsolutions.com.au for promotional purposes. This right extends to use in proposal documents, case studies and other marketing collateral as generated by Sensei.

  • 9.11.1. For the avoidance of doubt, you maintain all ownership over any trademark name and/or associated branding collateral. The above right is a non-transferrable licence.

9.12. Cancellation

  • 9.12.1. You hereby acknowledge and agree that Sensei resources are allocated to your engagements in good faith that, at the nominated and agreed times committed, You will be ready for those Sensei resources to commence the relevant services to be provided.

  • 9.12.2. In the event that any services (including, but not limited to, consulting time, deployment activities, training or workshops) are to be cancelled or postponed, You will provide us at least 3 business days written notice of the need to cancel or postpone.

  • 9.12.3. If You cancel or postpone with less than 3 business days written notice, you will incur a charge (“Cancellation Fee”) payable on your next invoice.

  • 9.12.4. The amount of the Cancellation Fee will be the total charge payable had the relevant services proceeded as planned.

  • 9.12.5. For the avoidance of doubt, the full charge for the services will remain payable at the time it is delivered. No amounts payable under a Cancellation Fee can be used to offset any other charges.

  • 9.12.6. A Cancellation Fee will not apply if the relevant delay was caused by a Force Majeure event.

9.13. Training IP;

  • 9.13.1. Sensei may provide training services to you from time-to-time, or as part of a more general services provision.

  • 9.13.2. Training services may include, but are not limited to, classroom training, virtual training, train-the-trainer style training, hypercare, training material or training documentation.

  • 9.13.3. You acknowledge that Sensei’s training provision is Intellectual Property owned exclusively by Sensei.

  • 9.13.4. The sharing, reproduction or distribution of Sensei’s training services to parties other than those directly provided training services as part of Sensei’s paid services provision, is hereby explicitly prohibited.

  • 9.13.5. The recording of Sensei’s training services, without express written approval of a Sensei representative, is hereby explicitly prohibited.

  • 9.13.6. A breach of this clause will result in additional charges from Sensei, and may result in termination of this agreement.