Our Standard Service Terms and Bi-lateral Non-Disclosure Agreement

This is a service agreement where:

a)        The Client wishes to engage O’Kane Internet Consulting Pty Ltd as an independent contractor for a specific project; and

b)        The Client wishes O’Kane Internet Consulting Pty Ltd to perform all or part of an existing or new function to assist the Client achieve his/her defined activities and operational objectives in a timely fashion; and

c)        Both parties have agreed on certain terms and conditions for the provision of those services to the Client by O’Kane Internet Consulting Pty Ltd; and

d)        Both parties wish to have their entire agreement documented in writing by entering this Agreement.

Definitions & Interpretation

2)        In this Agreement –

3)        “Agreed Fees” means the fees described in Schedule of Services.

a)        “Client” means any individual person, firm, corporation, or otherwise described entity, which purchases, enquires, applies for, and / or obtains any goods or services from the Client.

b)        “Commencement Date” means the date if any appearing in Schedule A.

c)        “GST” means the goods and services tax and any related interest, penalties, fines or other charge or charges imposed by the GST Law.

d)        “GST Law” means A New Tax System (Goods and Services Tax)

e)        Act 1999 (Cth) and all regulations rulings and court decisions made under that Act;

f)         “Services” means the services described in Schedule B.

4)        In this Agreement, unless the contrary intention appears, a word which denotes –

a)        the singular includes the plural;

b)        any gender includes the other genders;

5)        In this Agreement, unless the contrary intention appears, a reference to –

a)        writing includes any communication sent by post, email or facsimile transmission;

b)        a person includes a reference that person’s executors, administrators, legal personal representatives, successors, and permitted assigns;

c)        any statute, proclamation, rule, code, regulation or ordinance includes all regulations and other instruments under it and all amendments, consolidations, modifications, re-enactments or reprint of it or any statute, proclamation, rule, code, regulation or ordinance replacing it or of any particular provision of it;

d)        this Agreement includes the recitals of and any schedule, annexure and exhibit to this Agreement and where amended means this agreement as so amended;

e)        any monetary amounts refers to Australian currency;

f)         any party shall mean such party and its successors and assigns and (except in the case of corporations) heirs, executors and administrators;

g)        No rule of construction applies to the disadvantage of a party because this Agreement is prepared by (or on behalf of) that party.

h)        Headings in this Agreement are for convenience only and do not affect its interpretation or construction

In all other respects the interpretation of the Agreement is governed by the Acts Interpretation Act 1901 (Cth).

6)        This Agreement shall commence on the date this contract is made.

7)        The Client hereby grants to O’Kane Internet Consulting Pty Ltd access to material listed in “Access Required” in “Schedule of Services” and as considered necessary for the proper conduct of this project. 

8)        The Client hereby engages O’Kane Internet Consulting Pty Ltd to provide and complete the Services listed in “Schedule of Services” within the Term allowed in section entitled “Schedule of Services”.

9)        The client agrees to reasonably co-operate with O’Kane Internet Consulting Pty Ltd in the delivery of its services.

10)     In particular, the client agrees to keep appointments mutually agreed by it and O’Kane Internet Consulting as best as it can. If it cannot, it agrees to provide reasonable notice of a cancellation.

11)     If the work provided exceeds two times the billable hours, the client should pay up to the previously completed stage and the scope of the project should be renegotiated (resulting in a new contract)

12)     In addition to 11, Either party can terminate this agreement at any time with 7 days written notice or less if agreed by both parties.

13)     Agreed Fees which are payable –

a)        Invoices will be issued monthly or as otherwise agreed. The Client shall satisfy all outstanding invoices within thirty days of receipt of invoice.

14)     O’Kane Internet Consulting Pty Ltd shall ensure that the Services are performed in a careful, skilful, diligent, and efficient manner and in accordance with all applicable laws, appropriate international and national standards and best business practices.

15)     O’Kane Internet Consulting Pty Ltd shall comply with all the laws relating to the Services, including if applicable and without limitation the Privacy Act 1988 (Cth), the Uniform Consumer Credit Code, the Trade Practices Act 1974 (Cth) and the Financial Transaction Reports Act 1988 (Cth).

16)     The parties agree and warrant that-

a)        O’Kane Internet Consulting Pty Ltd is engaged as an independent contractor, and

b)        this Agreement does not create a contract of employment, and

c)        this Agreement does not create a partnership between the parties.

17)     The parties agree that –

a)        this Agreement contains the whole of the terms governing their relationship, and

b)        neither party shall be bound by any conditions, definitions, warranties or representations written or stated prior to the creation of this Agreement and not expressly incorporated into this Agreement.

18)     O’Kane Internet Consulting Pty Ltd shall not assign any benefit under this Agreement without the consent in writing of the Client.

19)     Any purported assignment of any benefit under this Agreement without the Client’s written consent shall be null and void as between the parties.

20)     O’Kane Internet Consulting Pty Ltd assigns the Client all exclusive copyrights and all other intellectual property rights for any original software, schemas, designs, specifications and database designs created as a direct result of services rendered in this contract upon payment of the final invoice.

21)     Any source code arising from the direct result of services rendered is also transferable to the client upon payment of the final invoice.

22)     The Client acknowledges that code may incorporate proprietary and open source software (for example, the Microsoft.NET framework). O’Kane Internet Consulting Pty Ltd will only incorporate such software where it has rights to do so. The client acknowledges receipt of these licences.

23)     The Client also acknowledges that certain shared code libraries may be used between other clients to expedite development as per common industry practice.

24)     A defect in any provision of the Agreement or any part of a provision of this Agreement shall not affect any other provision.

25)     Except as expressly provided to the contrary in this agreement, all terms, conditions, warranties, undertakings, inducements or representations whether express, implied, statutory or otherwise relating in any way to the consultancy services or to this agreement are excluded. Without limiting the generality of the preceding sentence, O’Kane Internet Consulting Pty Ltd shall not be under any liability to the customer in respect of any loss or damage (including consequential loss or damage) however caused, which may be suffered or incurred or which may arise directly or indirectly in respect of the failure or omission on the part of the consultant to comply with its obligations under this agreement.

26)     Where any Act of Parliament implies in this agreement any term, condition or warranty that the Act avoids or prohibits provisions in a contract excluding or modifying the application of or exercise of, or liability under such term, condition or warranty, such term, condition or warranty shall be deemed to be included in this agreement. However, the liability of the consultant for any breach of such term, condition or warranty shall be limited, at the option of O’Kane Internet Consulting Pty Ltd, to any one or more the following:-

a)        the supplying of the services again; or

b)        the payment of the cost of having the services supplied again.

c)        refunding some of all payments

27)     The customer warrants that it has not relied on any term, condition, warranty, undertaking, inducement or representation made by or on behalf of O’Kane Internet Consulting Pty Ltd which has not been stated expressly in this agreement or upon any descriptions or illustrations or specifications contained in any document including any catalogues or publicity material produced by the consultant.

28)     The exclusions and exceptions set out in this clause shall equally apply to O’Kane Internet Consulting Pty Ltd servants, agents, employees, representatives or agents.

29)     The Party receiving the Confidential Information ("the Receiving Party") agrees that the information being disclosed by the other Party ("the Disclosing Party") is to be considered confidential and proprietary to the Disclosing Party and the Receiving Party shall hold the same in confidence, shall not use the Confidential Information other than for the purposes of its business with the Disclosing Party, and shall disclose it only to its officers, directors, or employees with a specific need to know.

30)     The Receiving Party will not disclose, publish or otherwise reveal any of the Confidential Information received from the Disclosing Party to any other party whatsoever except with the specific prior written authorization of the Disclosing Party.

31)     Confidential Information furnished in tangible form shall not be duplicated by the Receiving Party except for purposes of this Agreement.

32)     Upon the written request of the Disclosing Party, the Receiving Party shall return within ten (10) days of such request all Confidential Information received in written or tangible form, including all copies, all reproductions or any other media containing such Confidential Information.

33)     Upon the written instruction of the Disclosing Party, any documents or other media developed by the Receiving Party containing Confidential Information shall be destroyed by the Receiving Party. the Receiving Party shall provide a written certificate to the Disclosing Party regarding destruction within ten (10) days of that instruction.

34)     The obligations of the Receiving Party herein shall continue for 7 years from the date the Disclosing Party last discloses any Confidential Information to the Receiving Party pursuant to this Agreement.

35)     Further, the obligation not to disclose shall not be affected by bankruptcy, receivership, assignment, attachment or seizure procedures, whether initiated by or against the Receiving Party, nor by the rejection of any agreement between the Disclosing Party and the Receiving Party, by a trustee of the Receiving Party in bankruptcy, or by the Receiving Party as a debtor-in-possession or the equivalent of any of the foregoing under Federal or State law.

36)     The obligations of the Receiving Party detailed in this agreement shall have no effect with respect to Confidential Information which:

a)        is or becomes publicly available without breach of this Agreement by the Receiving Party; or

b)        is rightfully received by the Receiving Party without obligations of confidentiality; or

c)        is developed by the Receiving Party without breach of this Agreement;

provided, however, such Confidential Information shall not be disclosed until thirty (30) days after written notice of intent to disclose is given to the Disclosing Party by the Receiving Party along with the reasons for disclosure.

37)     Not only the Confidential Information but the Agreement itself is confidential. Both Parties agree not to disclose its participation in this non-disclosure undertaking, the existence or terms and conditions of this Agreement, or the fact that discussions are being held with the other Party, without the specific prior written authorization of the other Party.

38)     This Agreement shall be governed and construed in accordance with the laws of Australia and the State of New South Wales.    .

39)     The Receiving Party agrees that in the event of any breach or threatened breach by the Receiving Party, the Disclosing Party may obtain, in addition to any other legal remedies which may be available, such equitable relief as may be necessary to protect the Disclosing Party against any such breach or threatened breach.

40)     O’Kane Internet Consulting may inform potential customers that we completed this work and may provide evidence (with your confidential information removed) for them to assess. This also may mean O’Kane Internet Consulting may mention this work on their website.

41)     This Agreement terminates and supersedes all prior understandings or agreements on the subject matter hereof. This Agreement may be modified only by a further writing that is duly executed by both parties.

42)     The Receiving Party may not assign this Agreement or any interests herein without the Disclosing Party’s express prior written consent.

43)     If any term of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then this Agreement, including all of the remaining terms, will remain in full force and effect as if such invalid or unenforceable term had never been included.

44)     Headings used in this Agreement are provided for convenience only and shall not be used to construe meaning or intent.

45)     This Agreement shall be interpreted and construed in accordance with the Laws of the State of New South Wales.

46)     No waiver by either party or the breach of non-performance of any term condition or obligation of this Agreement shall be a waiver of any subsequent breach or failure to perform the same or any other term condition or obligation.

47)     Either Party's failure to insist in any one or more instances upon strict performance by the other party of any of the terms of this Agreement shall not be construed as a waiver of any continuing or subsequent failure to perform or delay in performance of any term hereof.