Supply Agreement

IComm Services

This agreement addresses the services to be provided by IComm to the Customer according to the terms and conditions outlined below and the following schedules.

Background

a. IComm is the supplier of telecommunications equipment and systems, including the provision of products and services to maintain, monitor, upgrade and repair telecommunications systems.

b. The Customer has agreed to engage IComm, and IComm has accepted the engagement to provide the Supply on the terms and conditions of this Agreement.

1. In this Agreement

Account Representative means the individual appointed by a party under clause 11;

Agreement means this agreement, any schedules and any annexures;
Business Day means any day except a Saturday, Sunday, or public holiday;
Change means any variation to all or part of the Supply;
Change of Control means, in relation to a body corporate, the occurrence of an event or circumstance where a person who is not presently able to do any of the following things becomes able to do one of the following things (whether directly or indirectly or through one or more intervening persons, companies or trusts)

a. control the composition of more than one-half of the body's board of directors;

b. be in a position to cast, or control the casting of, more than one-half of the maximum number of votes that might be cast at a general meeting of the members of the body; or

c. hold or have a beneficial interest in more than one-half of the issued share capital of the body;

Change Request means a written request by a party for a Change which will include any additional information reasonably necessary to enable the other party to properly assess the request;

Commencement Date means the date of this Agreement specified in Schedule B;

Confidential Information means:

a. the terms of this Agreement, and its respective subject matter, including Information submitted or disclosed by either party during negotiations, discussions and meetings relating to this Agreement;

b. Information that at the time of disclosure by a Disclosing Party is identified to the Receiving Party as being confidential; and

c. all other Information belonging or relating to a Disclosing Party, or any Related Entity of that Disclosing Party, that is not generally available to the public at the time of disclosure other than by reason of a breach of this Agreement or which the Receiving Party knows, or ought reasonably to be expected to know, is confidential to that Disclosing Party or any Related Entity of that Disclosing Party;

Controller means, in relation to a person:

a. a receiver, receiver and manager, administrator or liquidator (whether provisional or otherwise) of that person or that person's property; or

b. anyone else who (whether or not as agent for the person) is in possession, or has control, of that person's property to enforce an encumbrance;

Corporations Act means the Corporations Act 2001 (Cth);

CPI means the weighted average of 8 capital cities Consumer Price Index published by the Australian Bureau of Statistics;

Customer Equipment means any Customer equipment, hardware, software, tools or technology owned by or leased to the Customer or which is otherwise in the possession of the Customer;

Customer Material means any material, content or data provided by or on behalf of the Customer to IComm for the purposes of providing the Supply under the Agreement;

Disclosing Party means the party to whom Confidential Information belongs or relates;

Equipment means any equipment specified in Schedule A to be provided by IComm to the Customer. Equipment does not include Customer Equipment;

Event of Default means, in relation to a party, the occurrence of any one or more of the following events or circumstances:

a. the party fails to comply with any of its obligations under the Agreement;

b. an Insolvency Event occurs in relation to the party;

c. a Change of Control occurs in relation to the party, other than with the consent of the other party;

d. a notice of deregistration of the party is given under sections 601AA(5) or 601AB(5) of the Corporations Act;

e. the party fails to pay by the due date any amount due and payable by it under the Agreement; or

f. a material provision of the Agreement that purports to impose an obligation on the party is or becomes void, voidable, illegal, unenforceable or of limited effect (other than because of equitable principles or Laws affecting creditor's rights generally);

Expenses mean out-of-pocket expenses incurred by IComm in connection with the provision of the Supply;

Fee means the fees specified in Schedule B;

Further Term means a further term of 3 years;

GST has the meaning given to it in the A New Tax System (Goods and Services Tax) Act 1999 (Cth);

Information means any information, whether oral, graphic, electronic, written or in any other form, including:

a. forms, memoranda, letters, specifications, processes, procedures, statements, formulae, technology, inventions, trade secrets, research and development information, know-how, designs, plans, photographs, microfiche, business records, notes, accounting procedures or financial information, sales and marketing information, names and details of customers, suppliers and agents, employee details, reports, drawings and data;

b. copies and extracts made of or from that information and data, whether translated from the original form, recompiled, partially copied, modified, updated or otherwise altered; and

c. samples or specimens disclosed by either party;

Insolvency Event means, in relation to a party, any one or more of the following events or circumstances:

a. being in liquidation or provisional liquidation or under administration;

b. having a Controller or analogous person appointed to it or to any of its property;

c. being taken under section 459F(1) of the Corporations Act to have failed to comply with a statutory demand;

d. being unable to pay its debts or being otherwise insolvent;

e. becoming insolvent under administration, as defined in section 9 of the Corporations Act;

f. entering into a compromise or arrangement with, or assignment for the benefit of, any of its members or creditors; or

g. any analogous event or circumstance under the Laws of any jurisdiction,

unless such event or circumstance occurs as part of a solvent reconstruction, amalgamation, compromise, arrangement, merger or consolidation;

Intellectual Property Rights means all present and future intellectual and industrial property rights conferred by Law and wherever existing, including:

a. patents, designs, copyright, moral rights, rights in circuit layouts, database rights, trade marks, know how, brand names, domain names, inventions, product names, trade secrets and any other rights subsisting in the results of intellectual effort in any field, whether or not registered or capable of registration;

b. any application or right to apply for registration of any of these rights;

c. any registration of any of those rights or any registration of any application referred to in paragraph (b); and

d. all renewals and extensions of these rights;

Law means any principle of law or equity, statute, regulation, ordinance, code, by-law, or requirement or approval of a government or governmental or semi-governmental body that has the force of law;

Permitted Users means the persons described in Schedule E;

Personal Information means any information or opinion about a natural person (whether or not true), as defined in the Privacy Act, which either party deals with in connection with performing its obligations under the Agreement;

Personnel mean any individual, agent, officer, employee, consultant or contractor;

Premises means the premises of the Customer described in Schedule C;

Privacy Act means the Privacy Act 1988 (Cth);

Receiving Party means the party to whom Confidential Information is disclosed or who possesses or otherwise acquires Confidential Information belonging or relating to a Disclosing Party;

Related Entity has the meaning given to that term in the Corporations Act;

Service Levels means the service levels specified in Schedule D;

Service Level Credit means the credits specified in Schedule D;

Service Level Credit Cap means the cap specified in Schedule D;

Services means the services specified in Schedule A;

Software means any software specified in Schedule A to be provided by IComm to the Customer;

Standard Rates means IComm’s standard rates as altered by IComm from time to time;

Supply means the provision of any:

a. Equipment;

b. Software; or

c. Services,

or any other product or service provided by IComm to the Customer as specified in Schedule A;

Term means the term of the Agreement specified in clause 3;

Third Party means any party other than IComm or the Customer;

Transition Services means the services outlined in Schedule A in accordance with clause 23.6; and

Unavoidable Costs means:

a. any costs incurred by IComm, in connection with the performance of its obligations under this Agreement or any agreement with any Third Party in connection with this Agreement which cannot be cancelled, refunded or re-allocated to IComm’s other operations or business activities;

b. the costs of any redeployment or termination of employment of IComm’s Personnel engaged for the purposes of providing the Supply; and

c. the costs identified by IComm for any capital purchases made in connection with the Supply.

2. Priority of Contract documents

In the event of there being any inconsistency between the documents forming part of this Agreement, those documents will be interpreted in the following order of priority to the extent of any inconsistency:

a. this Agreement;

b. the Schedules;

c. any attachments to the Schedules, and

d. documents incorporated by reference in this Agreement.

3. Term

3.1 Initial Term

This Agreement begins on the Commencement Date and continues for the Term specified in Schedule B unless terminated in accordance with this Agreement.

3.2 Automatic Renewal

At the end of the Term, this Agreement will be automatically extended for the Further Term on the terms and conditions then in effect, unless either party provides written notice to the other party before the end of the Term that it is not to be renewed.

4. Scope of Supply

a. Prior to the Commencement Date, the parties will discuss and agree any details necessary to complete the relevant Supply, including purchase configuration and deployment of applicable Equipment.

b. The parties will negotiate in good faith and not unreasonably delay the execution of the Agreement.

c. The Customer will take such steps are reasonably required to assist IComm to carry out the Supply for the Customer.

5. Supply Commencement

a. Subject to the payment of the Fees, IComm will use reasonable endeavours to provide the Supply exercising the skill care and diligence expected of a reasonably skilled professional consultant experienced in providing the same or similar supplies.

b. IComm will use reasonable endeavours to deliver and, where applicable install or provide the Supply on the dates specified in Schedule A.

c. IComm shall ensure that all of its personnel who have access to the Premises of the Customer comply with all applicable and reasonable access policies (including occupational health and safety), procedures, security requirements and comply with all reasonable directions issued or notified by the Customer while on its Premises.

6. Right to subcontract

The Customer acknowledges that IComm may subcontract any or all of the provision of the Supply to a Third Party.

7 Service Levels

The Supply will be provided in accordance with any Service Levels specified in Schedule D.

8 Scheduled Maintenance

a. Parties acknowledge that maintenance work may be required from time to time in respect of the Supply. IComm will use reasonable endeavours to minimise the need for such maintenance work (Scheduled Maintenance).

b. In the event that any Scheduled Maintenance will cause or is likely to cause disruption to IComm's ability to provide the Supply to the Customer or may cause IComm to fail to meet a Service Level, where reasonably able to do so, IComm will agree appropriate maintenance windows with the Customer and will provide written notice of any upcoming Scheduled Maintenance. Such notice will include details of the nature of the Scheduled Maintenance, the likely impact on the Supply and Service Levels and the estimated dates and times for carrying out and completing the Scheduled Maintenance.

c. IComm will use reasonable endeavours to minimise any disruption to the Customer caused by the Scheduled Maintenance.

d. Notwithstanding this clause 8 or otherwise, IComm reserves the right to undertake emergency maintenance without notification to the Customer where required to prevent imminent harm to the Supply, the Customer or any third party. Where reasonably able to do so, IComm will notify the Customer prior to undertaking such emergency maintenance.

9. Equipment

a. This clause applies to the extent IComm supplies Equipment to the Customer under the Agreement.

b. Any risk in the Equipment passes to the Customer on delivery, and title in the Equipment passes when the Fees have been paid in full.

c. Until title passes to the Customer in accordance with clause 9(b), the Customer must ensure the Equipment remains the property of IComm and is stored separately by the Customer to enable it to be readily identified as the property of IComm and cross referenced to particular invoices.

d. Until all liability to IComm has been discharged, if the Customer sells or otherwise disposes of the Equipment before title to it has passed from IComm to the Customer:

e. that part of the proceeds of any sale or dealing as is equal to the Fees payable by the Customer to IComm for the Supply (IComm’s Entitlement) must be held by the Customer in a separate identifiable account on trust for IComm; and

the Customer must account to IComm for IComm’s Entitlement.
If in the opinion of IComm or the Customer any Equipment supplied by IComm to the Customer has a fault or defect that is covered by a warranty given by the Third Party manufacturer of that Equipment, IComm must use reasonable endeavours to pass across the benefit of any warranties offered in respect of the Equipment by the Third Party manufacturer and on request of the Customer shall request that the manufacturer repair or replace the Equipment under that warranty. Customer acknowledges that Third Party manufacturer warranty periods may vary between manufacturers and may be reduced to reflect any differences between delivery and actual install dates.

10. Software

a. This clause applies to the extent IComm supplies Software to the Customer under the Agreement.

b. IComm may provide the Customer with Software licensed by a Third Party (Third Party Material). If this occurs, the Customer acknowledges that:

its use of the Third Party Material will be subject to the Third Party licensor’s licence agreement; and
all licences with respect to the Customer’s use of the Third Party Material will be between the Customer and the Third Party licensor.

(Third Party Licence).

c. Title in any Third Party Material remains at all times with the Third Party.

d. The Customer is solely responsible for its compliance with the Third Party Licence and IComm will not be responsible for, or have any obligation to ensure, that the Customer agrees to or complies with the Third Party Licence.

e. Where requested by the Customer, IComm will use reasonable endeavours to provide the Customer with a copy of the Third Party Licence.

11. Relationship governance

During the Term, both parties will appoint an employee, representative or agent who:

a. will be the primary contact for the other party's Account Representative in dealing with matters under this Agreement;

b. will have overall responsibility for managing and coordinating the Supply;

c. will meet regularly with the other party's Account Representative; and

d. will have the authority to make decisions with respect to actions to be taken by that party in the ordinary course of day-to-day management of the Supply in accordance with this Agreement.

12. Customer rights and obligations

12.1 Generally

The Customer undertakes to:

a. do all things necessary to enable IComm to perform its obligations under this Agreement including performing any works, providing any equipment or connecting any services as required by IComm from time to time;

b. provide IComm with all assistance and co-operation in the performance of this Agreement required by IComm including providing IComm with:

required access to the Premises as and when requested by IComm;
access to relevant Customer Personnel; and
all Information and documentation as requested by, or as otherwise necessary for, IComm,

for the purposes of performing its obligations under this Agreement;

appoint and maintain sufficient numbers of appropriately qualified Customer Personnel to liaise with IComm in relation to the performance of this Agreement;
negotiate in good faith and not unreasonably delay performance of its obligations, including consents, under this Agreement; and
perform any obligations specified in this Agreement.

12.2 Customer Supply Responsibilities

The Customer must:

a. only allow Permitted Users to access the Supply;

b. confirm that the Customer has obtained all necessary consents for IComm to store and use any applicable Personal Information relevant to the Supply in the manner contemplated by this Agreement;

c. have the Customer Equipment and all resources necessary to receive the Supply, including hardware, software, telecommunications resources and web access as recommended by IComm;

d. not resupply the Supply to Third Parties or permit Third Parties to access the Supply without IComm’s consent; and comply with:

all applicable Laws;
all directions by a regulator;
any applicable acceptable use policy notified to the Customer; and
any reasonable directions by or on behalf of IComm in connection with the receipt or use of the Supply.

12.3 Customer Security Obligations

The Customer undertakes to:

a. use reasonable security precautions in light of its use of the Supply;

b. cooperate with IComm’s reasonable investigations of outages, security problems and any suspected breach of this Agreement;

c. keep the contact and other account information that IComm holds about it up to date;

d. not use the Supply to upload, download, transmit, store or otherwise make available any content that is unlawful, harassing, threatening, harmful, tortious, defamatory, libellous, abusive, violent, obscene, invasive of another's privacy, racially or ethnically offensive, or other otherwise objectionable or damaging to us, our users or others;

e. not interfere or attempt to interfere in any manner with the functionality or proper working of the Supply;

f. not to damage, hinder or unduly interfere with IComm or any other Third Party or their equipment; and

g. take sole responsibility for adequate security, protection and back up of its data.

13. Customer acknowledgements

a. IComm is not responsible for any failure to perform any of its obligations under this Agreement where, in the opinion of IComm, such failure is caused or contributed to by the Customer, Customer Personnel or any Third Party.

b. The Customer acknowledges that if the completion or the provision of the Supply is delayed or is required to be altered as a result of the following:

if IComm suspends the provision of the Supply in accordance with its rights under this Agreement;
if IComm is required to provide the Supply in circumstances other than those expressly or reasonably anticipated or stated in this Agreement;
the Premises have not been prepared or maintained in accordance with the Agreement, or in any event to the satisfaction of IComm;
if there is a change in the timing or complexity of the Supply;
if any of the project assumptions or the scope relating to the provision of the Supply set out in the Agreement (Assumptions) is incorrect, subject to change or is altered, including during the course of the provision of the Supply; or
as a result of any act or omission by the Customer, its Personnel, suppliers or customers,

then the Customer acknowledges and agrees that:

the dates for provision and acceptance of Supply as set out in the Agreement or otherwise agreed, will be delayed or changed as IComm reasonably considers necessary;
IComm may charge the Customer an amount equal to its reasonable loss, damage or expense incurred as a result of the delay or change in Assumptions including without limitation an amount equal to the Standard Rates for all IComm Personnel allocated to the delayed aspect of the project for the period of the delay, change in Assumptions or as it otherwise required to provide the Supply; and
IComm may increase the Fees relating to the provision of any amended or revised Supply which is required as a result of any of the events listed in clauses 13(b)(i) to 13(b)(vi).

14. Change requests

14.1 General Supply variations

Either party may at any time request a Change to the Supply as follows:

a. the party requesting the Change must, at its own cost, submit a Change Request in respect of the proposed Change and a written statement of business requirements to the other party in the form as set out in Schedule C;

b. at the cost of the Customer based on the Standard Rates, IComm will produce a specification for the Change, an estimate of the timing for performance of the Change and its likely impact on the Supply, and a quote for the likely Fee for performance or delivery of the Supply comprising the Change; and

c. if the specification, cost estimate, implementation program and terms of payment for the Change are not agreed in writing by the parties within 5 Business Days of IComm providing the material specified in 14.1(b), the Change Request will be deemed to be rejected and the relevant Fee and Supply scope will remain current.

14.2 IComm Supply variations

a. In addition to the rights under clause 14.1, IComm may modify the Supply by obtaining the Customer’s consent and in accordance with this clause as follows:

IComm may make the Change immediately and is not required to notify the Customer prior to the Change if in IComm’s opinion the proposed Change will benefit the Customer or will not have a material adverse effect on the Supply to the Customer;
IComm will provide written notice of the Change to the Customer of not less than 3 Business Days if the proposed Change is required by applicable Law or for technical or security reasons; or
IComm will provide written notice of the Change to the Customer of not less than 30 Business Days if in IComm’s opinion the proposed Change is likely to have a material adverse effect on the Supply to the Customer.

b. If in the reasonable opinion of the Customer a Change to the Supply has a material adverse effect on the Customer’s ability to use the Supply, the Customer must notify IComm in writing within 20 Business Days of the Change occurring and clearly demonstrate the existence and nature of the material adverse effect.

c. If IComm determines that there is a material adverse effect and IComm fails to correct it within 15 Business Days following receipt of the Customer’s written notice, the Customer may terminate that element of the Supply on 30 Business Days’ written notice to IComm.

15. Fees, Payment and GST

15.1 Fees

a. In consideration for performance of the Supply the Customer must pay IComm the Fees in the manner and at the times specified in Schedule B. IComm will provide the Customer with a tax invoice for all amounts due in respect of the Supply.

b. Unless otherwise specified in Schedule B, the Customer must pay the Fees within 7 Business Days from the date of invoice.

c. If the Customer wishes to dispute any invoice, the Customer must within 5 Business Days of receipt of the invoice notify IComm in writing of the nature of that dispute.

d. The Customer must pay any undisputed portion of an invoice issued under this clause within 7 Business Days from the date of invoice. The Customer must pay any disputed portion of the invoice within 5 Business Days after resolution of the dispute.

e. The Fees may change during the Term in the manner contemplated in Schedule B.

f. Where specified in Schedule B, the Customer must pay to IComm a deposit upfront for any capital purchases that are required to be made in respect of the Supply.

g. The parties acknowledge and agree that IComm will be reimbursed on demand at the actual cost for Expenses, provided that such Expenses are documented and receipts are attached to IComm's invoice, where applicable.

h. Timely payment of each invoice is an essential term of this Agreement.

i. Where applicable, the Customer must pay, in addition to the Fees, any GST levied or imposed upon IComm as a result of this Agreement. Unless otherwise expressly stated, all prices or other sums payable or fees to be provided under or in accordance with this Agreement are exclusive of GST.

j. At the end of each 12 months from the Commencement Date of the Agreement IComm may increase the Fees in accordance with CPI for the previous 12 month period. IComm will notify the Customer [10] Business Days before the Fee increase becomes effective.

15.2 Overdue amounts

a. Subject to clause 15.1(c) and 15.1(d), if any amount payable to IComm under this Agreement has not been paid by the Customer by the due date for payment, IComm may:

charge interest on the amount outstanding at the rate of 4% above the overdraft index rate charged by the Commonwealth Bank (or such other bank as IComm may nominate) from time to time calculated per annum from the due date for payment until such time as full payment of the outstanding amount is made by the Customer (which interest must be paid by the Customer on demand by IComm);
suspend performance of this Agreement (in part or in full) until the amount outstanding is paid in full; or
terminate the Agreement.

b. The exercise by IComm of any of its rights under this clause 15.2, does not affect:

the Customer’s obligation to pay any money due and payable; or
any other rights or remedies IComm may have in relation to any failure by the Customer to pay an amount due,

under this Agreement or any other agreement between IComm and the Customer.

16. Intellectual Property Rights

a. The Customer acknowledges that all materials, software, methods, processes, reports, documentation or other information or material (whether in electronic or material form) which is created by IComm (IComm Material) and all existing and future Intellectual Property Rights which is derived or arises from, or is connected with, the Supply or any IComm Material, is the property of and will at all times remain vested in IComm.

b. To the extent that any Intellectual Property Rights referred to in clause 16(a) do not automatically vest in IComm, the Customer immediately assigns to IComm absolutely and beneficially the whole of its rights, title and interest in and to those Intellectual Property Rights, whether presently existing or which arise at a date after the Commencement Date of this Agreement, with effect from the Commencement Date.

c. The Customer agrees to do all things necessary or desirable, and ensure its Personnel do all things necessary or desirable, to effect the assignment referred to in clause 16(b).

d. IComm grants the Customer a limited, non-exclusive, revokable, non-transferable, royalty-free licence for the Term to use, reproduce, and communicate the IComm Material solely to the extent necessary to have the effective use of the Supply.

e. The Customer grants IComm a limited, non-exclusive, revokable, non-transferable, royalty-free licence for the Term to use, reproduce, and communicate the Customer Material solely to the extent necessary to provide the Supply to the Customer under the Agreement.

f. The parties acknowledge that all right, title and interest in any Customer Equipment or Customer Materials generated solely by the Customer as a direct result of using the Supply is owned and retained by the Customer.

17. Privacy

a. Both parties agree to comply with any obligations under the Privacy Act.

b. In relation to any Personal Information disclosed by a party, the receiving party must comply with all Laws in relation to the use, storage and disclosure of that Personal Information.

c. The Customer agrees to comply with IComm's Privacy Policy which may be viewed at icomm.com.au.

18 Confidentiality

18.1 Obligations of confidentiality

Each party (Receiving Party) receiving, possessing or otherwise acquiring Confidential Information of any other party (Disclosing Party) acknowledges that the Disclosing Party's Confidential Information is the property of and confidential to or a trade secret of the Disclosing Party. Subject to clause 18.2, the Receiving Party must:

a. keep the Disclosing Party's Confidential Information confidential and not directly or indirectly disclose, divulge or communicate that Confidential Information to, or otherwise place that Confidential Information at the disposal of, any other person without the prior written approval of the Disclosing Party;

b. take all reasonable steps to secure and keep secure all Disclosing Party's Confidential Information coming into its possession or control; and

c. not memorise, use, modify, reverse engineer or make copies, notes or records of the Disclosing Party's Confidential Information for any purpose other than in connection with the performance by the Receiving Party of its obligations under this Agreement.

18.2 Exceptions

The obligations of confidentiality under clause 18.1 do not apply to any Information that:

a. is generally available to the public (other than by reason of a breach of this Agreement); or

b. is required to be disclosed by any applicable Law.

18.3 Residual information

Nothing in this Agreement will prevent a party from using in any way it sees fit and disclosing to its other customers, clients and suppliers any generic knowledge, skills and expertise retained in the memories of its employees, and any programming tools, problem-solving methodologies and associated checklists, templates or forms developed in performance of the Supply which may have general application in the fields of information technology and business management. It is however understood that the foregoing will in no circumstances extend to use or disclosure of Confidential Information of the other party.

19 Warranties

19.1 IComm warranties

IComm warrants that:

a. it will use reasonable endeavours to provide the Supply to a high professional standard, in accordance with accepted industry practice, using due skill and care and otherwise in accordance with this Agreement and any applicable Laws; and

b. it has all necessary consents to perform the Supply.

19.2 Customer warranties

The Customer acknowledges and warrants that:

a. the Customer’s Premises and any other premises at which the Supply is performed will be safe for the performance of the Supply; and

b. the use of the Customer’s Material or Customer Equipment by IComm in accordance with this Agreement will not infringe the Intellectual Property Rights of any Third Party;

c. all Information provided by the Customer or on the Customer’s behalf to IComm is accurate and is not, whether by omission of Information or otherwise, misleading; and

d. the Customer has not withheld from IComm any document Information or other fact material to the decision of IComm to enter into this Agreement.

19.3 General warranties

a. Any representation, warranty, condition or undertaking that would be implied in this Agreement by legislation, common law, equity, trade, custom or usage is excluded to the maximum extent permitted by Law.

b. Nothing in this Agreement excludes, restricts or modifies any condition, warranty, right or remedy conferred on the parties by the Competition and Consumer Act 2010 (Cth) or any other applicable Law that cannot be excluded, restricted or modified by agreement.

c. To the fullest extent permitted by Law, the liability of IComm for a breach of a non excludable condition or warranty referred to in clause 19.3(b) is limited, at IComm's option, to:

in the case of goods, any one or more of the following:
A) the replacement of the goods or the supply of equivalent goods;
B) the repair of the goods;
C) the payment of the cost of replacing the goods or of acquiring equivalent goods; or
D) the payment of the cost of having the goods repaired; or
in the case of services:
A) the supplying of the services again; or
B) the payment of the cost of having the services supplied again.

20. Limitation of Liability

a. Neither party is liable to the other party or to any other person for any indirect, incidental, special, exemplary or consequential loss or damage, loss of profits or anticipated profits, loss of revenue, economic loss, loss of business opportunity, damage to goodwill, loss of data, deletion or corruption of electronically or digitally stored information or loss or damage resulting from wasted management time irrespective of whether:

the loss or damage is caused by or relates to breach of contract, statute, tort (including negligence) or otherwise;
the possibility of such loss or damage was foreseeable; or
IComm or any other person was previously notified of the possibility of the loss or damage.

b. IComm is not liable for any loss or damage caused to any property or person of the Customer or any Third Party as a result of any defect in the Supply.

c. The maximum aggregate liability of IComm for all losses, damages and claims arising out of this Agreement, including liability for breach, in negligence or in tort or for any other common law or statutory action, is limited to the sum of the amounts paid or payable by the Customer for the Supply to which the loss relates to IComm under this Agreement in the 12 month period immediately before the notice of the then current claim.

d. Subject to this clause 20, reconstruction of data lost due to IComm's direct acts or omissions in the course of supplying Services will be at IComm's cost provided that IComm's sole liability to the extent permitted by Law will be to restore that data from the most recent back-up copy.

e. The Customer indemnifies IComm for any and all loss and damage (including legal fees) arising out of or in connection to:

all and any claims whatsoever and howsoever arising made by any Third Party in connection with or arising out of the Customer’s use of the Supply;
all and any claims whatsoever and howsoever arising made by any Third Party in connection with or arising out of IComm’s possession or use of the Customer Material or Customer Equipment in the course of providing the Supply; or
any failure by the Customer to obtain a consent necessary for IComm to provide the Supply.

21. Force majeure

Neither party will be liable to the other for any delay or failure to perform its obligations under this Agreement as a result of a cause beyond its reasonable control (Force Majeure). If the Force Majeure continues for a period of more than 20 Business Days, either party may terminate this Agreement by written notice to the other party.

22. Suspension

The Customer acknowledges that IComm may suspend the Supply or part of them:

a. during any emergency, technical failure, modification or Scheduled Maintenance activity relating to the Supply;

b. if the Customer does anything which IComm reasonably considers may have a detrimental effect on the Supply or any Third Party or their equipment;

c. if the Customer fails to pay Fees in accordance with the requirements of clause 15; or

d. if IComm reasonably considers it necessary to prevent or limit fraudulent or illegal use of the Supply or to protect IComm from legal liability.

23. Termination

23.1 Termination by either party

Either party may terminate the Agreement at any time for any reason and without prejudice to any right or action or remedy which has accrued or which may accrue in favour of that party, by giving the other party 60 Business Days’ notice to that effect.

23.2 Default Notice

If an Event of Default, occurs in relation to a party (Relevant Party), the other party may give a notice (Default Notice) to the Relevant Party specifying the Event of Default and requiring the Relevant Party to remedy the default within 15 Business Days after the Default Notice is given to the Relevant Party.

23.3 Termination Notice

If a party (Defaulting Party):

a. receives a Default Notice and does not comply with the notice within the relevant period referred to in clause 23.2; or

b. is the subject of an Insolvency Event,

then the other party, without limiting its other rights and remedies, may terminate the Agreement by giving to the Defaulting Party notice with immediate effect.

23.4 Consequences of expiry or termination

On the expiry or termination of the Agreement for any reason:

a. the Agreement is at an end as to its future operation except for the enforcement of any right or claim in relation to the Agreement that arises on, or has arisen before, the expiry or termination;

b. the Customer must immediately pay IComm all outstanding Fees which will become immediately due and payable and any invoice provided for work completed but not invoiced before termination;

c. the Customer must pay to IComm its Unavoidable Costs;

d. IComm may delete or destroy the Customer Material in its possession or control after a period of three weeks from termination;

e. any extraction of the Customer’s Material requested by the Customer will be provided by IComm subject to payment at IComm’s then current fees;

f. IComm may remove any IComm Material including monitoring software from a Customer’s computer network;

g. subject to the Customer complying with its obligations in clauses 23.4(b) and 23.4(c), the Customer will be entitled to retain and use that part of the Supply provided by IComm and paid for in full by the Customer on or before the date of termination;

h. the Customer must immediately cease using and return to IComm any part of the Supply that is not paid for by the Customer, at the Customer's risk and cost.

23.5 Refund following termination

Following the termination of the Agreement for any reason, IComm will not refund any Fees to the Customer for any Supply provided up to the date of termination.

23.6 Transition Services

a. Upon expiry or termination of the Agreement in accordance with clause 23.1 the Customer may request IComm to provide Transition Services.

b. Where agreed in Schedule B any Transition Services will be charged to the Customer at IComm's then Standard Rates.

c. Unless otherwise agreed in Schedule B IComm will provide Transition Services on and from the date of termination or expiry for a period not exceeding [3] months.

23.7 Survival of obligations

This clause 23.7 together with clauses 9, 15.1, 15.2, 16, 17, 18, 19, 20, 23.4, 23.5, 23.6, 24 and 24 survive termination or expiration of this Agreement.

24. Disputes

24.1 General

A party must not start arbitration or court proceedings (except proceedings seeking interlocutory relief) in respect of any dispute arising out of this Agreement (Dispute), unless it has complied with this clause 24.

24.2 Dispute Notice

a. A party claiming that a Dispute has arisen must give written notice to the other party specifying the nature of the dispute (Dispute Notice).

b. The Dispute Notice must:

identify the alleged breach of this Agreement or other matter giving rise to the Dispute;
set out in detail the facts upon which the Dispute is based;
have annexed to it copies of all correspondence and background Information relevant to the Dispute; and
contain particulars of the quantification of any claim of loss consequent on any alleged breach (if applicable).

24.3 Resolution of Dispute

a. During the [21] day period after a notice is given under clause 24.2 (or longer period agreed in writing by the parties to the Dispute) (Initial Period) each party must use its best efforts to resolve the Dispute.

b. If the parties cannot resolve the dispute within 10 Business Days after notice has been given, then the Dispute is to be referred to the respective chief executive officers or their nominees of each party (jointly referred to in the remainder of this clause as ‘Chief Executive Officers’) for resolution.

24.4Referral to mediation

If the Chief Executive Officers cannot resolve the Dispute within 10 Business Days after referral under clause 24.3(b), each party agrees that the Dispute must be referred for mediation at the request of either party, to:

a. a mediator agreed by the parties; or

b. if the parties cannot agree on a mediator within a further 5 Business Days following the 10 Business Day period referred to in this clause, by a person nominated by Lawyers Engaged in Alternative Dispute Resolution and Institute of Arbitrators and Mediators Australia, who accepts appointment as a mediator.

24.5 Conduct of mediation

The mediator appointed under clause 24.4:

a. will assist in negotiating a resolution of the Dispute;

b. will conduct the mediation in accordance with the Institute of Arbitrators and Mediators Australia Mediation Rules; and

c. may not make a decision that is binding on a party unless that party has so agreed in writing.

24.6 Costs

Each party must bear its own costs of complying with this clause 24 and the parties must bear equally the costs of any mediator engaged.

24.7 Termination of Dispute resolution process

The mediation shall terminate in accordance with the mediation rules of the Institute of Arbitrators and Mediators Australia. Once the mediation is terminated, either party will be entitled to issue court proceedings in relation to the matters in dispute.

24.8 Non-compliance

If in relation to a Dispute a party breaches any provision of clauses 24.2 to 24.4, the other party need not comply with clauses 24.2 to 24.4 in relation to that Dispute.

25 General

25.1 Nature of obligations

a. Any provision in this Agreement which binds more than one person binds all of those persons jointly and each of them severally.

b. Each obligation imposed on a party by this Agreement in favour of another is a separate obligation.

25.2 Entire understanding

This Agreement contains the entire understanding between the parties concerning the subject matter of this Agreement and supersedes all prior communications, agreements, proposals, work orders or correspondence between the parties.

25.3 No adverse construction

This Agreement is not to be construed to the disadvantage of a party because that party was responsible for its preparation.

25.4 Further assurances

A party, at its own expense and within a reasonable time of being requested by another party to do so, must do all things and execute all documents that are reasonably necessary to give full effect to this Agreement.

25.5 No waiver

a. A failure, delay, relaxation or indulgence by a party in exercising any power or right conferred on the party by this Agreement does not operate as a waiver of that power or right.

b. A single or partial exercise of the power or right does not preclude a further exercise of it or the exercise of any other power or right under this Agreement.

c. A waiver of a breach does not operate as a waiver of any other breach.

25.6 Severability

Any provision of this Agreement which is invalid in any jurisdiction must, in relation to that jurisdiction:

a. be read down to the minimum extent necessary to achieve its validity, if applicable; and

b. be severed from this Agreement in any other case, without invalidating or affecting the remaining provisions of this Agreement or the validity of that provision in any other jurisdiction.

25.7 Successors and assigns

This Agreement binds and benefits the parties and their respective successors and permitted assigns under clause 24.8.

25.8 No assignment

The Customer cannot assign or otherwise transfer the benefit of this Agreement without the prior written consent of IComm.

25.9 Consents and approvals

Where anything depends on the consent or approval of a party then, unless this Agreement provides otherwise, that consent or approval may be given conditionally or unconditionally or withheld, in the absolute discretion of that party.

25.10 No variation

This Agreement cannot be amended or varied except in writing signed by the parties.

25.11 Costs

Each party must pay its own legal costs of and incidental to the preparation and completion of this Agreement.

25.12 Governing Law and jurisdiction

a. This Agreement is governed by and must be construed in accordance with the Laws in force in Victoria

b. The parties submit to the exclusive jurisdiction of the courts of that State and the Commonwealth of Australia in respect of all matters arising out of or relating to this Agreement, its performance or subject matter.

25.13 Notices

Any notice or other communication to or by a party under this Agreement:

a. may be given by personal service, post, facsimile or sent electronically by email;

b. must be in writing, legible and signed by the relevant party's authorised representative and in English addressed (depending on the manner in which it is given) to the relevant contact and address, facsimile number or email specified in the Agreement or to any other address facsimile number or email last notified by the party to the sender by notice given in accordance with this clause; and

c. is deemed to be given by the sender and received by the addressee:

if hand delivered, on delivery;
if sent by regular post, 6 Business Days after the date of posting;
if sent by priority post, 4 Business Days after the date of posting;
if sent by post to or from a place outside Australia, 10 Business Days after the date of posting;
if sent by facsimile, when legibly received by the recipient with receipt being evidenced by a report generated by the sender’s facsimile system confirming successful transmission of the entire notice; or
if sent by email, when the sender’s email system confirms successful delivery of the notice to the recipient’s server, but if the delivery or receipt occurs on a day which is not a Business Day or occurs after 5.00pm on a Business Day (both the day and time being in the place of receipt), the notice is taken to be received at 9.00am on the next Business Day.

25.14 Counterparts

If this Agreement consists of a number of signed counterparts, each is an original and all of the counterparts together constitute the same document.

25.15 Non merger

A term or condition of, or act done in connection with, this Agreement does not operate as a merger of any of the rights or remedies of the parties under this Agreement and those rights and remedies continue unchanged.

25.16 Operation of indemnities

Unless this Agreement expressly provides otherwise:

a. each indemnity in this Agreement survives the expiry or termination of this Agreement; and

b. a party may recover a payment under an indemnity in this Agreement before it makes the payment in respect of which the indemnity is given.

25.17 Relationship of parties

a. Each party is an independent contractor and, unless this Agreement expressly provides otherwise, has no authority to bind or commit the other party.

b. Unless this Agreement expressly provides otherwise, nothing in this Agreement may be construed as creating a relationship of partnership, of principal and agent or of trustee and beneficiary.