SOFTWARE DEVELOPMENT AGREEMENT

1. The Supplier will develop the Software in accordance with the Customer Requirements and the Timetable.
2. Subject to payment of fees under clause 3, and subject also to any other amendment to the agreements reached between the parties, the Supplier will complete software development work as scoped and agreed.

1. The Customer will pay the Supplier $160 per hour for any ongoing software development as scoped and agreed or previously agreed discounted hourly rate.
2. The final instalment is payable upon the satisfactory completion of acceptance testing.
3. The Customer acknowledges that any alteration or amendment to Scoping or existing software may necessitate an amendment of costs associated previously Scoped and agreed tasks or projects or phases. The Customer further acknowledges that an alteration or amendment of the specifications may, in addition to necessitating an amendment to the Scope, entitle the Supplier to make an additional charge.
4. The Customer will make all payments within 7 days of the due date. The Supplier will be entitled to charge interest at the rate of 10% on any amount outstanding beyond 30 after the due date. Failure by the Customer to pay any outstanding amount within a further 60 days will be deemed a terminating event.
5. If a Customer disputes the whole or any part of the amount claimed in an invoice submitted by the Supplier pursuant to this agreement, the Customer will pay the undisputed portion on the due date. The dispute regarding the remainder may be referred to the dispute resolution procedure prescribed by this agreement. If it is subsequently resolved that a further amount is payable, the Customer will pay that amount together with interest at the rate of 10% per annum.
6. Words defined in the GST Law have the same meaning in this clause, unless the context makes it clear that a different meaning is intended.
7. In addition to paying the Development Fee and any other amount payable or in connection with this agreement (which is exclusive of GST), the Customer will:
   1. pay to the Supplier an amount equal to any GST payable from any supply by the Supplier in respect of which the Development Fee or any other amount is payable under this agreement; and
   2. make such payment either on the date when the Development Fee is due or within days after the Customer is issued with a tax invoice, whichever is the later.
8. The Supplier must, within 10 days of request from the Customer, issue a tax invoice (or an adjustment note) to the Customer for any supply under or in connection with this agreement.
9. The Supplier will promptly create an adjustment note for (and apply to the Commissioner of Taxation for) a refund, and refund to the Customer, any overpayment by the Customer for GST but the Supplier need not refund to the Customer any amount for GST paid to the Commissioner of Taxation unless the Supplier has received a refund or credit for that amount.

1. The Supplier will notify of completion when it is satisfied on reasonable grounds that the Software has been successfully implemented.
2. Upon the issuing of a notification pursuant to clause 4(a), the Customer may conduct any reasonable tests to confirm that the Software is compliant with the Customer Requirements.
3. If, during a period of 30 working days following the Deployment Date, the Software fails to perform substantially in accordance with the Customer Requirements, it will be deemed not to be accepted, unless it has been affected or changed due to modifications in code from a separate change requested by the customer.
4. If the Software is deemed not to be accepted pursuant to clause 4(c), the Supplier will be given the opportunity to rectify the defect or replace the Software within a further period of 30 days.
5. If the Software fails to perform substantially in accordance with the Customer Requirements during the 30-day period referred to in clause 4(d) the Customer may, at its option, grant a further period during which satisfactory performance is to be achieved or alternatively terminate the agreement.
6. The Software will be deemed accepted if it substantially conforms with the Customer Requirements during any of the periods referred to in clause 4(c), 4(d) or 4(e).

1. The Customer will provide the Supplier with all information, facilities and services reasonably required by the Supplier to enable it to perform its obligations under this agreement effectively, including use of the Customer’s computer equipment and telecommunications facilities if required.

1. Subject to clauses 6(b) and 6(c), title and Intellectual Property Rights in the partially completed Software will vest in the Customer upon payment for each Development Phase as provided by the schedule 1. Title in the completed Software will vest in the Customer upon payment for each Development phase.
2. Despite clause 6(a), Intellectual Property Rights in pre-existing materials will not vest in the Customer unless specifically stated in the schedule 1.
3. Nothing in this agreement affects ownership of third party materials comprised within the Software unless specifically stated to the contrary in the schedule 1.
4. For the benefit of the Customer, its licensees, successors in title and anyone authorised by any of them to do acts comprised in the copyright of the Software, the Supplier consents, and will obtain all other necessary written consents, to any act or omission that would otherwise infringe the Moral Rights of any person in the Software.

1. The Supplier warrants that the Software will conform substantially with the Customer Requirements. The Supplier does not warrant, however, that the Software will be error free.
2. The Supplier will rectify, at no charge to the Customer, any defect in the Software which renders the Software incapable of conforming substantially with the Customer Requirements if notification of such defect is received during a period of
3. 60 days following the Acceptance Date.
4. The Supplier will not be liable under this warranty to rectify a defect which is the result of use of the Software in combination with equipment, programs or services not recommended in writing by the Supplier.
5. The Supplier makes no warranty of fitness for purpose apart from those purposes listed in the schedule 1.
6. If a defect is notified to the Supplier pursuant to clause 7(b), and such defect cannot be remedied within a period of 60 days from the date of notification, the Customer may at its option specify a further period within which the defect is to be rectified or, alternatively, treat the defect as a terminating event.

1. For the purpose of this clause, the following are terminating events:

   the breach or threatened breach by either party of any of its material obligations under this agreement;

   the appointment of any type of insolvency administrator in respect of the property or affairs of either party;

   the entry or proposed entry by either party into any scheme, composition or arrangement with any of its creditors;

   the permanent discontinuance of use of the Software or any part of the Software by the Customer; and

   the merger with or the takeover of either party by another person.

2. This agreement may be terminated immediately on the happening of a terminating event at the option of the affected party.
3. If the terminating event is one specified in clauses 8(a)(i) – 8(a)(v), the affected party must give to the other party notice of the happening of that event and require the breach to be remedied or a written undertaking to be given that the breach will not occur, as the case may be. If the breach is not remedied or the undertaking not given (as the case may be) within 60 days, the affected party may agree to waive its rights under this clause if satisfied that the happening of the terminating event has not in any way prejudiced its position under this agreement.
4. Neither party will be liable for the consequences of an occurrence of any event beyond its reasonable control.

   (e) Upon termination of this agreement, the Customer will be entitled to retain the custody of all materials, documentation and programs in respect of which payment has been made pursuant to this agreement and the Supplier will be entitled to retain or repossess all materials, documents or computer programs in respect of which payment has not been made.

1. Subject to clause 9(c), the Supplier will indemnify and hold harmless the Customer against any claim made against the Customer by a third party alleging that the Software infringes the copyright of that third party.
2. The Supplier will not be liable to the Customer under clause 9(a) if:
   1. the Customer does not notify the Supplier of the other person’s claim or of infringement of copyright within seven days after becoming aware of the claim;
   2. the Supplier’s ability to defend the claim has been prejudiced by the Customer’s non-compliance with any of its obligations under this agreement;
   3. the Customer does not give the Supplier reasonable assistance in defending the claim;
   4. the claim has arisen because of the use of the Software in combination with equipment, materials or computer programs not supplied or approved by the Supplier; or
   5. the Customer does not permit the Supplier to have control of the defence of the claim and all related settlement negotiations.
3. Except in relation to liability for personal injury (including sickness and death), property damage or an infringement of confidentiality or Intellectual Property Rights, and subject to any non-excludable statutory liability, the liability of the Supplier in respect of any act or omission of the Supplier in connection with its obligations under this agreement will not exceed the amount (if any) specified in the schedule 1.
4. In respect of any claim between the parties under or in connection with this agreement, the parties agree that to the maximum extent permitted by law, the operation of part 4 of the Civil Liabilities Act 2002 (NSW) or of any laws having a similar effect in the Commonwealth and other states and territories of Australia with respect to proportionate liability, are excluded and have no application or effect.

1. Subject to clause 10(b), any condition or warranty which would otherwise be implied in this agreement is excluded.
2. Liability of the Supplier for the breach of a guarantee conferred by the Australian Consumer Law (other than those conferred by sections 51 to 53 of the Australian Consumer Law) is limited:
   1. in the case of goods, to any one of the following as determined by the Supplier:
      1. the replacement of the goods or the supply of equivalent goods;
      2. the repair of the goods;
      3. the payment of the cost of replacing the goods or of acquiring equivalent goods
      4. the payment of the cost of having the goods repaired
   2. in the case of services, to any one of the following as determined by the Supplier:
      1. the supplying of the services again; or
      2. the payment of the cost of having the services supplied again.

1. A party will not, without the prior written approval of the other party, disclose the other party’s Confidential Information.
2. A party will not be in breach of clause 11(a) in circumstances where it is legally compelled to disclose the other party’s Confidential Information.
3. Each party will take all reasonable steps to ensure that its employees and agents, and any sub-contractors engaged for the purposes of this agreement, do not make public or disclose the other party’s Confidential Information.
4. Despite any other provision of this clause, a party may disclose the terms of this agreement (other than Confidential Information of a technical nature) to its related companies, solicitors, auditors, insurers and accountants.
5. This clause will survive the termination of this agreement.

1. The parties will not use or disclose any personal information for a purpose other than discharging their obligations under this agreement. The parties further agree to comply at all times with the Australian Privacy Principles contained in schedule 1 to the Privacy Act 1988 (Cth) (or an applicable privacy code approved by the Commissioner pursuant to that Act) in the same way and to the same extent as the parties would have been required to comply had they been directly responsible for performing the act or practice concerned. The parties will take all necessary steps to protect personal information in their possession against misuse or loss and it will return all such information to the owner of the information (or if requested by the owner, destroy or de-identify such information) upon termination or expiry of this agreement. This clause will survive the termination or expiry of this agreement.
2. The Customer warrants that the disclosure of personal information to the Supplier for the purposes of this agreement, and the collection of such information by the Supplier, will not contravene the Australian Privacy Principles.
3. For the purpose of this clause, personal information means information or an opinion about an individual as defined in section 6 of the Privacy Act 1988 (Cth) which is collected, used, disclosed, stored or handled by a party for the purposes of this agreement.

1. The parties agree that neither party and their associated entities, sub-contractors or their employees will employ or approach for employment, the employees or ex-employees of the other party, during the term and until a minimum period of twelve (12) months following the termination of this agreement.

1. The Supplier warrants that the development of the Software does not infringe the Intellectual Property Rights of any third party.
2. Subject to clause 14(c), the Supplier will indemnify and hold harmless the Customer against any claim made against the Customer by a third party alleging that the Software infringes the copyright of that third party.
3. The Supplier will not be liable to the Customer under clause 14(c) or 14(b) if:
   1. the Customer does not notify the Supplier of the other person’s claim or of infringement of copyright within 30 days after becoming aware of the claim;
   2. the Supplier’s ability to defend the claim has been prejudiced by the Customer’s non-compliance with any of its obligations under this agreement;
   3. the Customer does not give the Supplier reasonable assistance in defending the claim;
   4. the claim has arisen because of the use of the Software in combination with equipment, materials or computer programs not supplied or approved by the Supplier; or
   5. the Customer does not permit the Supplier to have control of the defence of the claim and all related settlement negotiations.

1. This agreement supersedes all prior agreements, arrangements and undertakings between the parties and constitutes the entire agreement between the parties relating to the development of the Software. No addition to or modification of any provision of this agreement will be binding upon the parties unless made by written instrument signed by a duly authorised representative of the party.

1. All notices which are required to be given under this agreement must be in writing
2. and must be sent to the address of the recipient set out in the schedule 1 or such other
3. address as the recipient may designate by notice given in accordance with this clause. Any notice may be delivered by hand or by prepaid letter or email. Any such notice will be deemed to have been served when delivered (if delivered by hand) or on transmission by the sender (if sent by facsimile) or (if sent by email and unless agreed otherwise), when the email enters the recipient’s mail server.
4. Youconsent to us being given a consumer credit report to collect overdue payment on commercial credit.

1. Neither party will assign, whether in whole or part, the benefit of this agreement or any rights or obligations under this agreement, without the prior written consent of the other party.

This agreement will be governed by and construed in accordance with the laws for the time being in force in Victoria and the parties agree to submit to the jurisdiction of the courts and tribunals of that Victoria.

No forbearance, delay or indulgence by a party in enforcing the provisions of this agreement will prejudice or restrict the rights of that party, nor will any waiver of those rights operate as a waiver of any subsequent breach.

1. The provisions of this agreement may not be varied except by agreement in writing signed by both parties.
2. 2 If a proposed variation relates to the scope of this agreement (including but not limited to specifications, performance levels, key dates or charges), the proposing party must include in its submission a change control report which addresses in full detail:
   1. a description of the proposed change;
   2. an assessment of the benefits and risks to each party associated with the proposed change;
   3. a time frame for the proposed implementation;
   4. a description of any disruption which may result from the change;
   5. any consequential changes which may be required; and
   6. such other matters as are specified in the schedule 1 in relation to change control.

Should any part of this agreement be or become invalid, that part will be severed from this agreement. Such invalidity will not affect the validity of the remaining provisions of the agreement.

Any dispute or difference arising in connection with this agreement will be submitted to arbitration in accordance with, and subject to, the rules for the Conduct of Commercial Arbitrations (or equivalent) of Australian Dispute Resolution Advisory Council (ADRAC). During such arbitration, both parties may be represented by a duly qualified legal practitioner.