General Terms and Conditions for provision of Products and Services

Terms and conditions for provision of products and services set out hereinafter and (if applicable) terms and conditions for provision of software subscription, SaaS or term licenses purchased from Identity Solutions, together with any other terms, included in each relevant Order document, comprise terms ("Terms") that govern the provision of Product(s) and Service(s) by Identity Solutions Australia Pty Ltd (hereinafter Identity Solutions) to you, the Customer ("You", "Customer"). 
Use of Identity Solutions' products and/or services signifies your acceptance of the Terms

NOTE:  If you do not agree to the Terms, do not proceed or use Products and Services supplied by Identity Solutions.

Term
Term shall become effective upon the date it is accepted by Identity Solutions and the Customer, or when Identity Solutions delivers Product or Services, whichever is earliest. Unless otherwise specified in any other relevant Order, or terminated by either party by giving at least a 30 days written notice, Terms are effective for a period of 12 months. 
By mutual agreement in writing, the period can be extended.



  1. Product(s)
    Mean hardware, software and software as a service (SaaS) which are supplied or resold by Identity Solutions. 




  2. Order
    
Means an accepted Statement of Work (SoW), Quote, Order Form or other document issued by Identity Solutions outlining Products and/or Services with any other relevant terms and conditions. 

  3. Service(s)

    Mean the supply of Products and services, including consulting, design, development, implementation, integration, testing, deployment to production, warranty and support work to be provided by Identity Solutions and as set out in any relevant Order.



  4. Material

    Means any software, firmware, documented methodology or process, tools, object libraries, documentation or other material in whatever form, including without limitation any reports, specifications, business rules or requirements, user manuals, user guides, operations manuals, training materials and instructions, and the subject matter of any Intellectual Property Rights.



  5. Deliverable
    Means a specificity defined outcome of Services (or part thereof) which the Customer have requested Identity Solutions to provide, develop or create under any relevant Order.
  6. Production Environment
 
    Means the Customers’ settings where Products and software programs are run to support business operations and where Products and software programs operate for their intended uses (by end users, where applicable). 


     

  1. Precedence
    Where there is any inconsistency between any rights or obligations under an Order relevant terms and General Terms, any rights or obligations specified in the Order shall prevail to the extent of any inconsistency.



  2. Acceptance
    Products are accepted on delivery. Services are accepted on completion of relevant Deliverables or, if provided on a time and materials basis, on provision of man-hours as recorded in relevant timesheets. 
Any defects shall be advised to Identity Solutions in writing, with a reasonable period of time, to allow Identity Solutions to remedy the same under Warranty.


  3. Order Charges
    Unless otherwise stated in an Order, each Order document is valid for 30 days and Charges exclude delivery and installation fees. Service Charges are as per Identity Solutions' prices and rates agreed in an Order. Charges for Services sourced from overseas are subject to foreign exchange rate changes.

 Charges commence on when Identity Solutions delivers Products or Services or as stated in a relevant accepted Order. Recurring license, support and/or maintenance charges are billed in advance.



  4. Payment Terms   

    Payments of invoices are due in 30 days from the receipt of a correctly rendered invoice. If the invoice is overdue by more than 45 days, Identity Solutions may suspend its Services and all monies for Service delivered become immediately due and payable. Overdue payments attract an interest charge of 5% per annum applied daily.



  5. Taxes 

    Identity Solutions' invoices submitted for payments will contain the information necessary to be a tax invoice for the purposes of the GST legislation.
  6. Termination
    No termination for convenience is permitted. Either party may terminate their obligations under agreed Terms in whole or in part if:


    1. the other party is in breach or default of its obligations and fails to remedy the same within 30 days of written notice; or
    2. either party enters into any form of receivership, administration or liquidation.


  7. Delays
    Identity Solutions shall not be liable for performance of Service due to any delays or inability to perform caused by circumstances or events beyond the reasonable control of Identity Solutions or its suppliers.


  8. Service Exclusions
    Service exclusions include:
    1. Supply or service of items which are not listed in an agreed Order document;
     
    2. Warranty service for items that are not at the minimum hardware and software versions and/or configuration;

    3. Unless agreed otherwise:
      1. upgrades and/or modifications of hardware; and 
      2. installation of new versions or releases of software, changes to integration modules or data migrations required to use the same;

      3. re-supply of services required due to:
      • user misuse or abuse; or
      • damage or errors caused by fire, smoke, heat, water, flood, storm, lightning, brownouts, electrical failure and any other act of God;
 or
      • use other than as per manufacturer’s instructions and recommended operating environment;
 or
      • repairs by a third-party that has not complied with manufacturer’s or other installation or operations instructions;
 or
      • repairs to items used in excess of rated life or Products which become unserviceable;
 or
      • manufacturer recalls including products or parts replacement or substitution;
 or
      • suppliers’ refusal to provide services or spares under any warranty that assigned to Identity Solutions.

      Where the above exclusions apply, Identity Solutions at its discretion may offer to provide or continue to provide service on a chargeable time and materials basis.




  9. Customer Obligations

    For provision of Services and assurance of Products to their specification, customer shall: 
    1. provide full and safe access to its premises, Products and any other necessary equipment, accessories, materials, information; and
    2. provide timely access to competent and experienced resources; and

    3. conduct reviews and approvals of Deliverables as set out in a relevant Order; and
    4. not to use un-approved Deliverables in Production Environment; and
    5. be responsible for its own security and suitable protection measures of data and operating environments; and
    6. ensure that all work site(s) are safe and comply with all relevant occupational health and safety laws and regulations.
  10. Title and Risk
    Property and ownership of Products delivered to the Customer is retained by Identity Solutions until Identity Solutions receives payment in full for each Product and until then, the Customer holds Products and any proceeds of sale as trustee for Identity Solutions. Risk passes on the delivery of Products.



  11. Statutory Rights
    If Identity Solutions is in breach of a condition or warranty implied by then Consumer Law (ACL), then Identity Solutions’ liability, to the extent permitted by law, is limited at its option, to:


    1. the repair or replacement of the Products; or 
    2. paying the cost of having the Products repaired or replaced.

  12. Intellectual Property Rights

    Unless otherwise stated in an Order document, all Intellectual Property Rights in existing Material and data owned by Identity Solutions or its licensors are provided to the Customer remain with Identity Solutions or its Licensors. All other intellectual property rights created or developed during the course of a Service and incorporated in Deliverables shall also remain with Identity Solutions. Upon receipt of payment from the Customer in full for completed Deliverables as defined in a relevant Order, Identity Solutions will grant the Customer a non-exclusive, non-transferable license to use Identity Solutions owned Intellectual Property Rights that has been incorporated into these Deliverables under the relevant Order.
  13. Third-party Products and Services   
    
Service may require Identity Solutions to obtain additional third- party products and services. Third-party products and services resold by Identity Solutions “as is”, non-returnable and subject to the original licensor and/or manufacturer’s specifications and warranty, including any intellectual property indemnity, support and warranty.

 

  14. Warranties 
    Identity Solutions will perform Services using all requisite care, skill and workmanship. 

    Products will be new unless otherwise is stated in an Order document. Identity Solutions assigns to Customer any end user warranties provided by the manufacturer. Customer assigns to Identity Solutions the right to claim under that manufacturer’s warranty. Identity Solutions does not warrant that Products are error free or will not fail in operation.

    Unless an Order document expressly amends Warranties as set out hereinafter, the Warranty period commences on a Deliverable acceptance date and is the shorter of either:

    1. 30 days; or
    2. period of time that commences on the Deliverable acceptance date and ends on the day the Deliverable is deployed in the Customer Production Environment.
  15. Limit of Liability

    Notwithstanding any other provisions agreed under Terms or implied by law, Identity Solutions’ cumulative liability during the Term (and any renewals) for all actions, claims and defaults including negligence will be limited in aggregate as follows:


    1. for injury to or death of natural persons or damage to or loss of tangible property is limited to its insurances;

    2. for any other damage or loss, is limited to the lesser of either: 
      • the amount of actual direct damage or loss, or 

      • the amount paid by the Customer to Identity Solutions in the last 12 month period in relation to actual Service and/or Product that gave rise to the claim.

  16. Insurances
    In connection with the provision of the Services, Identity Solutions will have and maintain for the Term valid and enforceable insurance policies for:

    1. all insurance cover that Identity Solutions is required to effect and maintain under any law (including worker's compensation insurance);
    2. public liability insurance;
    3. if applicable, any specified insurance policy
  17. Variations to Terms
    No terms in a customer purchase order amend or prevail Terms and shall be deemed to be null and void. Terms cannot be varied, except by agreement in writing signed by Identity Solutions and the Customer. 
If either party wishes to vary Terms, the proposing party shall submit proposed variations to the other party (the receiving party) in writing, specifying a reasonable period in which the receiving party is to provide written notice of acceptance or rejections of the proposal. If the receiving party accepts the variations, the Terms will be deemed to be so amended from the date of acceptance. If the receiving party rejects the proposed variations, unvaried Terms will continue to be in effect and operational. 


  18. Confidentiality 
    Each party agrees to keep confidential information and data which is marked or by its nature private and confidential (Confidential Information). Parties shall protect, not disclose or use Confidential Information for its own benefit.  Confidential Information and data shall be handled, stored and migrated without loss, destruction, corruption, alteration or any reduction in accessibility or useability.  Parties will maintain strict security in relation to the Confidential Information and will take such steps to safeguard it from unlawful or accidental disclosure, as they would prudently take to safeguard their own Confidential Information of a similar type. If a party became aware of, or suspect any disclosure, unauthorised use, removal or copying of Confidential Information that is in conflict with Terms, the party will:

    1. take commercially reasonable steps to stop that unauthorised disclosure, use or copying; and

    2. notify the other party of such unauthorised use of the confidential information; and
    3. if directed by the other party:
      • destroy Confidential Information;
      • assist with required confidentiality breach investigation. 

    4. Miscellaneous
      These Terms are to be construed subject to the laws and courts of Victoria, Australia. Customer shall at all-times keep Identity Solutions informed of any known non-compliance or threatened non-compliance with the Terms listed here-above. If any provisions are held invalid, void, illegal or unenforceable, the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired. Customer agrees that Identity Solutions may include Customer's name or logo in Marketing Material indicating to the public that Customer is using its Product(s) and/or Service(s). Products, including technical information, software and services of overseas origin may be subject to export, re-export, information control or other laws. The Customer agrees to comply with these laws in their use in the event of a re-export.