PROFESSIONAL SERVICES AGREEMENT
MERKLE AUSTRALIA PTY LTD
These Terms and Conditions, together with any Order Form or Statement of Work that incorporates these Terms and Conditions by reference, govern your purchase and receipt of our Professional Services. By accepting these Term and Conditions, either by clicking a button indicating your acceptance, or by executing an “Order Form” or a Statement of Work (“SOW”) that references these Terms and Conditions, you agree to enter into a legally binding agreement comprising these Terms and Conditions and the relevant Order Form or SOW (“Agreement”).
This Agreement is effective between You and Us as of the date on which You accepted or signed the relevant Order Form or Statement of Work.
These Terms and Conditions were last updated on 28th September 2020
“Acts” means the Competition and Consumer Act 2010 (Cth) and the Fair Trading Act 1987 (NSW) together with any regulations or other instruments made under them.
“Agreement” means this Professional Services Agreement and any exhibits schedules and addenda.
“Confidential Information” means all information disclosed by a party or its Affiliates (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and/or the circumstances of disclosure including, without limitation, nonpublic business processes, strategies, technologies, data, nonpublic technologies, methodologies, tools and templates. Confidential Information of each party includes the terms and conditions of this Agreement and all SOW(s) or Order Form(s), including pricing.
“Deliverable” means a deliverable under an SOW of Order Form.
“Input Material” means all data, information, text, drawings and other materials which are supplied to the Us by or on behalf of You which We are required to handle, process, store or manipulate in connection with this Agreement.
“Order Form” means an ordering document specifying the Professional Services to be provided as specified in this Agreement and that is entered into between You and Us.
“Professional Services” means work performed by Us, Our Affiliates, or Our or their respective permitted subcontractors under an SOW or Order Form, including ’Our provision of any Deliverables specified in such SOW or Order Form.
“SOW” means a statement of work describing Professional Services to be provided, that is entered into between You and Us or which is incorporated into an Order Form that is entered into between You and Us.
“We,” “Us”, “Our” or “Affiliates” means Merkle Australia Pty Ltd (ACN 604 488 851) of 105 York St, South Melbourne VIC 3205 or its subsidiary or related body corporate (as that term is defined in s.50 of the Corporations Act 2001 (Cth)).
“You” or “Your” means the company or other legal entity for which you are accepting this Agreement, and Affiliates of that company or entity.
2. Professional Services
2.1. Professional Services.
We agree to provide and You agree to acquire the Professional Services specified in the applicable Order Form or SOW subject to your payment of all applicable fees as set forth in the “Fees” section of this Agreement.
(a) The scope of the Services to be provided by Us are set out in the Order Form.
(b) Any estimate provided by Us for the Professional Services does not constitute an offer capable of acceptance. We may withdraw or alter any estimate without notice.
(c) These Terms prevail over any inconsistent terms in any of Your documents.
(d) All prices are expressed in Australian currency and exclude all taxes, duties and charges imposed or levied in Australia or overseas in connection with the supply of the Services including (but not limited to) any Goods and Services Tax.
(e) This Agreement is governed by the law of New South Wales, Australia.
(f) We may alter the Terms and Conditions at any time without notice, but such changes will not affect the provisions of this Agreement. It is Your responsibility to review the Terms and Conditions prior to executing any future Order Form or SOW.
2.2. Personnel and Use of Subcontractors.
Subject to the provisions of this Agreement and unless otherwise specified in the relevant SOW, We shall supply all materials, equipment, and qualified personnel necessary to perform the Professional Services, including any subcontractors required to perform the Professional Services. Any subcontractors used by Us shall have executed a written agreement with Us that obligates any such subcontractor to protect Confidential Information to the same extent as is required of Us in this Agreement. We shall be responsible for all acts and omissions of any such subcontractor to the same extent as if We had performed the Professional Services.
You will cooperate reasonably and in good faith with Us in Our performance of Professional Services by doing all things necessary to allow Us to perform Our duties, including but not limited to, allocating sufficient resources, timely delivery of materials and information, responding to Our inquiries and requests, assigning an internal employee to act as a primary contact for Us, actively participating in all scheduled meetings, reasonable access to your facilities and employees, at no cost to us, for the purposes of the Professional Services and all other reasonable things to allow us to perform the Professional Services. You will take all reasonable steps to prevent any conduct or omission which inhibits our ability to perform the Professional Services.
Any delays in the performance of Professional Services or delivery of Deliverables caused by You may result in additional applicable charges for resource time.
4. Delivery, Acceptance and Change Orders
4.1. Delivery of Services.
We will provide the Professional Services, including any Deliverables, in accordance with the Agreement and the applicable SOWs or Order Forms.
Upon completion of each Deliverable under a SOW or Order Form, we will, as applicable: (a) submit a complete copy to You; and (b) at Your request, demonstrate its functionality to You. You are responsible for reviewing and testing all Deliverables in accordance with the SOW or Order Form subject to any acceptance criteria or tests mutually agreed upon in writing by the parties for such Deliverable. You will provide Us with written notification of acceptance for each Deliverable promptly upon acceptance; however, failure to reject a Deliverable, as set forth below, will be deemed acceptance.
If, in good faith, You are unsatisfied with any submitted Deliverable on the basis that it does not meet the acceptance criteria set out in the applicable SOW or as mutually agreed upon in writing by the parties regarding the Deliverable, you must follow the Rejection Procedure set out below:
- Notify Us in writing within 10 business days of receiving the submitted Deliverable setting out the deficiencies in detail.
We will then use commercially reasonable efforts to resolve the deficiencies and resubmit the Deliverable to You in a reasonable timeframe.
- If the Deliverable remains deficient regarding the relevant acceptance criteria you must again notify us in accordance with Clause 4.2(a) above.
- If, following two resubmissions by Us, the Deliverable remains materially functionally deficient in regards to the relevant SOW or Order Form, You may either:
- Reject the Deliverable in accordance with Clause 4.2(a) above; or
- Terminate the relevant SOW or Order Form immediately upon written notice and recover all Professional Services fees paid under the relevant SOW or Order Form.
This Clause 4.2 does not apply to deficiencies or minor discrepancies which occur as a result of a miscommunication between the parties or misunderstanding of a particular requirement. In such instances the parties will make reasonable efforts to correct minor discrepancies or execute a Change Order if the discrepancy is significant.
4.3. No Effect on Warranty Remedies.
Acceptance of Professional Services, including a Deliverable, will not affect Your rights or remedies under Clause 8.2.
4.4. Change Orders.
Changes to a SOW or Order Form will require a written change order (“Change Order”) signed by the parties prior to implementation of the changes. Such changes may include, for example, changes to the scope of work and any corresponding changes to the estimated fees and schedule.
4.5 Resource Scheduling.
In the event that a scheduled staff member cannot complete a task or tasks due to You not providing the necessary dependencies by the required date, You agree to pay for any down time according to Our hourly rate card until the staff member is redeployed.
4.6 Time Banks
Notwithstanding clause 10.4, the following arrangements shall apply in relation to prepaid hours of service (“Time Banks”).
4.6.1 Expiry and Termination
Subject to clause 4.6.2, Time Banks must be used within 12 months of the date of purchase.
4.6.2 Timing of Work
In the event You have not used more than 75% of a Time Bank within nine months of purchase, We reserve the right to perform the hours remaining in the Time Bank over the next six months (as opposed to the next three months).
4.6.3 Use of Time Banks
Any work conducted under a Time Bank is charged on a per hour basis and debited from the Time Bank accordingly. Whilst every effort is made to provide an accurate estimate of the hours required to deliver the task, the estimate does not represent a quote and the time may vary significantly. In the event that a Time Bank is exhausted, We will provide You with the option of stopping work until an Order Form is signed for a new Time Bank or continuing the work on a Time and Materials basis until a new Order Form is signed. You agree to pay for any time incurred between the exhaustion of the previous Time Bank and the signing of the New Time Bank.
Our staff which are engaged on a retainer basis will be scheduled according to the time specified in the approved SOW. This time does not roll over to future weeks or sprints. Any additional time required over and above the agreed retainer will be agreed with You in writing and charged monthly in arrears or debited from a Time Bank.
5. Fees, Invoicing and Taxes
5.1. Professional Services Fees.
(a) Fixed Price. If an Order Form provides for payment of Professional Services fees on a “Fixed Price” basis, We will invoice You for work performed as set forth in such Order Form. If We are delayed in completing the Professional Services and such delay is due to an act or omission referred to under Clause 3.1 We shall notify You that Our performance of the Professional Services may be delayed. In such cases Our obligations may be reconsidered, the time to provide Professional Services may be extended, and We may renegotiate the fixed fee.
(b) Time & Materials. If an Order Form provides for payment of Professional Services on a time and materials (or “T&M”) basis, the Professional Services shall be provided at Our T&M rates in effect as of the specified commencement date. On a T&M engagement, if an estimated total amount is stated in the applicable Order Form, that amount is solely a good faith estimate and not a guarantee that the Professional Services will be completed for that amount; the actual amount may vary. If the estimated amount is expended, We will continue to provide Professional Services on a T&M basis under the same rates and terms.
(c) Expenses. You will reimburse Us for reasonable travel and out-of-pocket expenses incurred in conjunction with the Professional Services.
5.2 Invoicing and Payment.
Except as otherwise provided, all fees are quoted and payable in Australian dollars. Charges for time-and-materials engagements will be invoiced monthly in arrears unless otherwise expressly stated in the applicable SOW or Order Form. Charges for fixed fee engagements will be invoiced in advance in the manner as provided in the SOW or Order Form, unless otherwise expressly stated. Invoiced amounts will be due and payable net 15 days from the invoice date. You are responsible for providing Us with Your complete and accurate billing and contact information and notifying Us of any changes to such information.
5.3. Overdue Payments.
If any invoiced amount is not received by Us by the due date, then without limiting Our rights or remedies, (a) those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, and/or (b) We may condition future purchases of Professional Services on payment terms shorter than those specified in Clause 5.2, and/or (c) We may suspend all services and/or software until payment is made. If any invoiced amount is not received by Us by the due date, We may provide Your details which We have collected for the purpose of Your dealings with Us to external credit agencies.
Unless otherwise stated, the price is GST exclusive. In addition to the price for the Professional Services, You must pay Us an amount equal to any GST on Professional Services, disbursements and any out of pocket expenses.
6. Intellectual Property
In so far as We have any intellectual property rights in Deliverables We have agreed to provide to You as part of the Services, We hereby assign all such intellectual property rights to You. Nothing in this Agreement requires Us to assign Our intellectual property rights to software, source code or other materials used by Us as Our tools for the development of solutions for Our own use or for the use of Our other customers.
7. Confidentiality and Non-solicit
Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
7.2. Protection of Confidential Information.
Except as otherwise permitted in writing by the Disclosing Party:
(i) the Receiving Party will take all reasonable steps and precautions to not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and
(ii) the Receiving Party will limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees, contractors and agents that require such access for purposes consistent with this Agreement and who are bound by confidentiality obligations to the Receiving Party not materially less protective than those herein.
7.3. Forced Disclosure.
The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure.
7.4 No solicitation
You covenant with Us that You will not either on Your own account or for any other person, firm or company directly or indirectly solicit, interfere with, or endeavour to entice away from Us any of Our directors, employees, consultants, or sub-contractors, nor will You knowingly employ or aid or assist in or procure the employment by any other person, firm or company of such person during the Term and for a period of 6 months thereafter.
8. Representations, Warranties and Disclaimers
Each party represents that it has validly entered into this Agreement and has the legal power to do so.
We warrant that the Professional Services will be performed in a professional and workmanlike manner in accordance with generally accepted industry standards. For any breach of the above warranty, Your exclusive remedy and Our entire liability will be the re-performance of the applicable Professional Services. If We are unable to re-perform the Professional Services as warranted, You will be entitled to recover the Professional Services fees paid to Us for the deficient Professional Services. You must make any claim under the foregoing warranty to Us in writing within 30 days of performance of such Professional Services in order to receive warranty remedies.
This warranty is exclusive and in lieu of all other warranties (other than those referred to in clause 8.4), whether express or implied, including warranties as to performance, method of construction, merchantability, fitness for a particular purpose, or non-infringement, to the maximum extent permitted by applicable law.
8.4. Statutory Warranties
Notwithstanding Clause 10 herein, if this Agreement constitutes a supply of goods or services to a consumer, as defined in any of the Acts and to the full extent permitted by law:
- nothing in this Agreement will be construed as excluding, restricting or modifying any express or implied guarantee, condition, warranty, right or remedy conferred by any of the Acts on You; and
- Our liability in respect of a breach of a guarantee, condition or warranty implied by any of the Acts (other than an implied condition as to good title, an implied warranty that You will enjoy quiet possession and an implied warranty that the goods are unencumbered together with any other non-excludable implied conditions or warranties contained in any of the Acts), including liability for any consequential loss which You or any other entity or person may sustain or incur will be limited at Our option to:
- in the case of goods:
- in the case of services:
- the supplying of the services again; or
- the payment of the cost of having the services supplied again;
- any other remedy allowed by the Acts.
9. Limitation of Liability
9.1. Limitation of Liability.
Our liability with respect to any single incident arising out of or related to this agreement will not exceed the amount paid by You for Professional Services under the applicable Order Form or Statement of Work.
9.2. Exclusion of Consequential and Related Damages.
To the extent permitted by law, in no event will We be held liable for any lost profits, revenues or any indirect, special, incidental, consequential cover or punitive damages, whether in contract or tort, and regardless of the theory of liability, even if We have been advised of the possibility of such damages.
You agree to indemnify Us against any damages, losses, fines and expenses We may suffer or incur arising from or in connection with any claim or allegation that We have breached any third party’s intellectual property rights by using the Input Materials in accordance with this Agreement.
10. Term and Termination
This Agreement commences on the date of the relevant SOW or Order Form and will remain in effect until the completion of the delivery of the Services or otherwise terminated in accordance with this section 10 (“Term”).
10.3. Termination for Cause.
A party may terminate this Agreement and/or any SOW or Order Form for cause: (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) immediately upon giving written notice if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
10.4. Payment Upon Termination.
Upon any termination of an SOW or Order Form, You will pay, in accordance Clause 5 of this Agreement, any unpaid amounts incurred on or before the termination date. Such amounts may be apportioned with regard to the completion status of the particular Professional Services. In the event that You terminate an SOW or Order Form under Clause 10.3 and You have pre-paid any fees for Professional Services not yet received, We will refund such pre-paid fees at our reasonable discretion. In the event that We terminate an SOW or Order Form for cause, any pre-paid fees for Professional Services charged on a fixed-fee basis are non-refundable, unless expressly stated otherwise in an SOW or Order Form.
10.5. Surviving Provisions.
Clauses 5,7, 8 9, 10 and 11 of this Agreement will survive any termination or expiration of this Agreement.
11.1 Client Reference
We may reference You as a client of Merkle Australia Pty Ltd which may also include the display of Your logo in the Clients section of our website. Any request by You to Us to keep the relationship with You and Us confidential or to remove Your logo from Our website should be made in writing. We will make best efforts to action such requests quickly.
11.2 Waiver and Exercise of Rights
- A single or partial exercise or waiver of a right relating to this Agreement will not prevent any other exercise of that right or the exercise of any other right.
- A party will not be liable for any loss, cost or expense of any other party caused or contributed to by the waiver, exercise, attempted exercise, failure to exercise or delay in the exercise of a right.
Each provision of this Agreement is severable from the others and no severance of a provision will affect any other provision.
11.4 Force majeure
We will not be liable for any delay or for failure to perform Our obligations if that delay or failure is caused by circumstances beyond Our control, but not limited to, acts of God, war, accidents, fire, blockade, import or export embargo, natural catastrophes, industrial disputes, civil disturbance, strikes (other than strikes by Our employees or the employees of Our sub-contractors) or lockouts or impossibility of obtaining source material. We will be entitled to a reasonable extension of time for the performance of such obligations.
11.5 Entire Agreement
This Agreement constitutes:
- the entire agreement between the parties as to its subject matter and supersedes all prior representations and agreements in connection with that subject matter; and
- may only be altered in writing signed by both parties.
This Agreement may only be varied, supplemented or replaced by a document in writing signed by Merkle Australia Pty Ltd (ACN 604 488 851) and You.
11.7 Governing Law and Jurisdiction
This Agreement shall be governed by and construed in accordance with the laws of the state of New South Wales and the Commonwealth of Australia and the Courts of New South Wales shall have non-exclusive jurisdiction save in respect of the enforcement of judgments where their jurisdiction shall be non-exclusive.