In this Agreement:
Agreement means this Agreement (including any Schedules) in writing between IDCARE and the Customer for the provision ofthe Services.
Business Day means any day except a Saturday or a Sunday or other public holiday in Queensland.
Confidential Information means any information relating to either party, that has been disclosed in any form to the other party or otherwise learned or acquired by the receiving party under or in connection with this Agreement, which is identified by disclosing party as being confidential, or which due to the circumstances of disclosure the receiving party knows or ought to know is confidential, whether disclosed visually, orally or in writing, but excluding information that:
Customer means the entity executing this agreement.
Fee means the agreed fee for the Services as set out in the ratified IDCARE Services proposal.
Force Majeure Event means an event which:
IDCARE means Identity Care Australia & New Zealand Limited (ABN 84 164 038966), My Data Care Pty Ltd (ABN 35 643 544 950) and IDCARE Limited (NZBN9429041070109), the Supplier, and any of the charity's wholly-owned entities.
Incident means a data breach arising from unauthorised access to information owned by the Customer and the Customer has engaged IDCARE to provide services in relation to the Incident.
Personal Information has the same meaning as in the Privacy Act.
Privacy Act refers to the Privacy Act 1988 (Cth), including any amendments or replacements thereof.
Modern Slavery has the same meaning given to it in the Modern Slavery Act 2018 (Cth) and other similar activities prohibited under any other applicable law.
Services means the Services specified in the First Schedule (if there is one) or as otherwise agreed to in writing between the parties.
In this Agreement:
2.1 IDCARE will provide the Services to the Customer in accordance with this Agreement.
2.2 IDCARE will not vary the Services provided without the written consent of the Customer.
2.3 IDCARE acknowledges and agrees that:
2.4 IDCARE will operate and maintain for the duration for which the Services are performed information and data security policies, standards and procedures (“Security Practices”) based on, and consistent with, best industry practice.
3.1 IDCARE will provide the Services in consideration for the payment by the Customer of the Fee detailed in this executed Agreement. Any payments so provided for in this Agreement are exclusive of GST (unless otherwise stated).
3.2 The Fee:
3.3 Annual Price Reviews:
4.1 IDCARE acknowledges and agrees that to the best of its knowledge, information and belief, at the date of executing of this Agreement, no conflict of interest exists or is likely to arise in the provision of the Services pursuant to this Agreement.
4.2 IDCARE will take all necessary steps to ensure that its employees, agents and sub-contractors do not engage in any activity or obtain any interest, which is in conflict with the provision of the Services to the Customer pursuant to this Agreement.
4.3 If during this Agreement, a conflict of interest or a risk of conflict of interest arises (without limitation, because of work undertaken for any person other than the Customer) IDCARE will notify the Customer immediately in writing of that conflict of interest or risk.
4.4 The Customer may manage the conflict of interest as it reasonably considers appropriate provided it takes actions in compliance with relevant policies of the Customer. Management of a conflicts of interest issue by the Customer may include termination of this Agreement by the Customer without liability to IDCARE.
5.1 This Agreement will commence from the date hereof and continue in force for one (1) year or the earlier termination of this Agreement. Notwithstanding the foregoing, the terms of this Agreement will continue to apply to any Services until IDCARE has fulfilled its performance of such Services, or for Services expressed to be performed in perpetuity.
5.2 The Customer may terminate for convenience by providing thirty days written notice of termination.
6.1 If either party:
the other party will notify the defaulting party in writing specifying the reason for the default and requiring the defaulting party, where possible, to remedy the failure or to show cause within thirty (30) days from the giving of such notice why the Agreement should not be terminated.
6.2 If the defaulting party fails to remedy the failure or to show cause within thirty (30) days to the satisfaction of the other party acting reasonably, the other party may without prejudice to any other rights, terminate this Agreement by notice.
6.3 Where IDCARE is providing Incident Management services, it reserves the right to terminate this Agreement if:
6.4 Termination under Clause 6.3 shall result in the withdrawal of IDCARE services as at the termination date made in writing to the Customer. IDCARE shall issue in writing a notice to terminate the Agreement at the specified date and invite the Customer to provide a written response to the notice in seeking to address or remedy the reasons outlined in the notice. If the Customer fails to remedy the failure or to show cause within fifteen (15) days to the satisfaction of IDCARE acting reasonably, IDCARE may without prejudice to any other rights, terminate this Agreement by notice.
6.5 On receipt of any such response to the notice to terminate under Clause 6.3, it is IDCARE’s sole discretion (acting reasonably) to determine whether the reasons are sufficient, and if not, to issue an invoice only for the work performed under the First Schedule to the termination date. There shall be no further conditions or requirements on either party from the date of termination as it relates to this agreement.
7.1 On termination of Agreement, the parties are released from their respective obligations to continue to perform this Agreement, provided that such termination does not affect:
7.2 If the Customer terminates the Agreement in accordance with clause 6.2, IDCARE must refund the Customer for any Fees paid in respect of Services that are yet to be performed within 28 days of termination of this Agreement. This excludes all establishment fees as specified in this executed Agreement.
7.3 On expiry or termination of this Agreement, both parties agree that within 14 days from the date of expiry or termination IDCARE will return (or at the Customer’s option, destroy and certify the destruction of) any of the Customer’s property (including any confidential or sensitive information provided by the Customer to IDCARE or otherwise obtained by IDCARE during the course of providing the Services) in its possession or control.
8.1 A party to this Agreement will not be entitled to exercise its rights and remedies upon the default of the other party (whether at common law or under this Agreement) if that default is caused by a Force Majeure Event.
8.2 A party prevented from performing any of its obligations under this Agreement by a Force Majeure Event must:
9.1 Each party shall indemnify the other party and its officers, directors, employees, principals and agents, against any and all loss, liability, damages, and expenses (including legal fees on a full indemnity basis) suffered or incurred by either of them to the extent such loss, liability, damage or expense is suffered or incurred, as a result of any of the following:
9.2 A party’s liability to indemnify the other party pursuant to this clause 9 shall be reduced to the extent that the other party caused or contributed to the relevant loss, liability, damage or expenses. The parties agree that they will have a duty to mitigate their loss before relying on the indemnity provided under this clause 9.
10.1 In no event will either party be liable for any consequential, incidental, indirect, special or punitive damage, loss or expenses or business interruption, lost business, lost profits or lost savings based on, resulting from, arising out of, or otherwise related to this Agreement.
11.1 IDCARE will, at its own expense, obtain and maintain the following Insurance Policies with a reputable insurer:
11.2 IDCARE must maintain these Insurance Policies for the Term of this Agreement and for a period of seven years after the expiry or termination of this Agreement. IDCARE will provide the Customer with current evidence of the insurance policy upon request.
12.1 If a dispute arises between the Customer and IDCARE in connection with this Agreement or the provision of the Services, either party will give a written notice of dispute to the other, which notice will identify and provide full details of the dispute, within seven (7) days of the dispute arising.
12.2 Notwithstanding the notification of a dispute, the parties will continue to perform their obligations pursuant to this Agreement.
12.3 Within fourteen (14) days of the written notice of dispute, the parties will confer at least once to resolve the dispute or to agree on methods of resolving the dispute.
12.4 If the dispute is not resolved within fourteen (14) days of the written notice of dispute, the dispute may be referred to mediation by either party or be the subject of litigation.
13.1 Each party will (and, if applicable, will procure that their Related Companies will):
13.2 Clause 13.1 will not apply to the extent the disclosure is:
14.1 IDCARE must, in carrying out its obligations under this Agreement, comply with all relevant statutes, regulations, by laws and requirements of any Commonwealth, State, Territory or Local Authority.
14.2 IDCARE and any person who performs or provides goods or services under this Agreement will comply with the requirements (including registration or licensing) of any relevant profession or industry.
15.1 In providing the Services, IDCARE must comply, and ensure that its officers, employees, agents and subcontractors comply with the Privacy Act and not do anything that would breach an Australian Privacy Principle contained within the Privacy Act.
15.2 IDCARE shall only collect, use, and disclose Personal Information for purposes directly related to the performance of this Agreement, and only to the extent necessary to fulfill those purposes.
15.3 IDCARE shall take reasonable precautions to protect the security of Personal Information against unauthorised access, loss, misuse, or alteration. IDCARE shall implement appropriate technical and organisational measures to ensure a level of security appropriate to the risk, including encryption, access controls, and regular security assessments.
15.4 IDCARE will notify the Customer as soon as reasonably practicable if it becomes aware of a breach or possible breach of the obligations contained in this clause.
15.5 The obligations and rights set forth in this clause shall survive the termination or expiration of the Agreement.
16.1 This Agreement will be governed by and construed in accordance with, the laws of Queensland. The parties hereby submit themselves to the jurisdiction of the Courts of Queensland.
17.1 Where GST is imposed on a taxable supply for the purposes of the GST law, a party must pay GST on a taxable supply made to it under this Agreement, in addition to any consideration (excluding GST) that is payable for that taxable supply.
17.2 A party making a taxable supply to another party under this Agreement must issue a tax invoice to the other party, setting out the amount of the GST payable by that other party.
17.3 If a party is required under this Agreement to indemnify another party or to make a reimbursement or contribution to another party, and that other party can obtain an input tax credit on an acquisition associated with that indemnity, reimbursement or contribution, the amount the party is required to pay is:
However, the amount of an indemnity, reimbursement or contribution is not reduced by the amount of an input tax credit if that credit has already been taken into account in calculating the amount of the indemnity, reimbursement or contribution.
17.4 The supplier of a taxable supply warrants that it is registered or will be registered for Australian Business Number and GST purposes, at each time a taxable supply is made. A party must continually indemnify the other party for any loss and damage it suffers as a result of a party not being registered for Australian Business Number and GST purposes. On request by the other party, a party must produce evidence that it is registered.
17.5 If an adjustment event results in the GST on a taxable supply being different from the GST recovered by a party, a party:
The recovery of any money from the other party is conditional on an adjustment note being given first.
17.6 Each party must do everything reasonable to assist each other party to comply with its GST obligations in relation to this Agreement.
17.7 For the purposes of this Clause, GST and GST law shall have the following meanings assigned to them:
18.1 Notices under this Agreement will be in writing and may be delivered by prepaid postage, by hand or by e-mail to each of the parties at the address specified in this Agreement or such other address as either party may specify by notice in writing to the other.
18.2 Notices will be deemed to be given:
provided that delivery of any notice pursuant to Clause 17.2(b) after 5.00 pm will be deemed delivery on the following Business Day.
19.1 This Agreement constitutes the entire agreement between the parties in relation to its subject matter and supersedes any and all prior discussions or previous agreements between the parties in relation to its subject matter.
19.2 No modification intended to be an amendment to this Agreement will have any effect unless made in writing and signed by an authorised officer of the Customer and by IDCARE. For the avoidance of doubt this shall include any standard terms and conditions of IDCARE which have no effect unless otherwise expressly agreed in writing by the parties and signed by an authorised officer of the Customer and by IDCARE.
Neither this Agreement nor any of the benefits or obligations may be assigned, subcontracted or otherwise divested by IDCARE without the Customer's prior written consent.
This Agreement may be executed in any number of counterparts. Together all counterparts make up one instrument.
If any provision of this Agreement is declared by any judicial or other competent authority to be void, voidable, illegal, or otherwise enforceable, then shall be severed from this Agreement. In all other respects the terms and conditions of this Agreement shall remain in full force and effect.
This Agreement is not intended to create a relationship of employment, trust, partnership, joint venture or agency between the parties. No party to this Agreement is empowered to incur any obligation or make any representation on behalf of the other party without the express consent of that other party.
No party to this Agreement will disclose, distribute or otherwise communicate any media release, promotional material or publicity in connection with this Agreement, its relationship with the other party or otherwise refer to the other party or any service mark or trademark of the other party without the prior written approval of the relevant party. Each party may grant or withhold such approval in its sole discretion.