WeBTG Standard Procurement Terms and Conditions

These terms of business or Procurement (‘Terms’) apply in respect of the services (“Services”) to be performed by WeBTG for the client named in a corresponding quote or proposal (“Client” or ‘you”), both collectively referred to as the ‘parties’, and any subsequent estimate to which these Terms apply.

These Terms and Conditions may be unilaterally amended and supplemented at any time at the discretion of WeBTG Pty Ltd.

Terms last updated:  15 May 2023

This update constitutes the written notice for all customers.

This Agreement is effective from the Date of Execution of the Agreement. Engaging or continuing to engage WeBTG to provide the Services, will confirm your acceptance of this Agreement.

1. Services

1.     WeBTG will provide the services to the Client that are set out in a signed proposal or schedule that is to be read in conjunction to this Agreement (“Services”).

2.    Each Party will provide the resources as described in an “Agreed Scope” (e.g., signed proposal or revised statement of work).

1.     The Client and WeBTG will collaborate in good faith to achieve the Agreed Scope.

2.     Unless explicitly stated, the Agreed Scope is the minimum level of functionality required to achieve an outcome.

3.     Where the Agreed Scope is not explicit, both parties have the responsibility to clarify.

4.     Unless explicitly stated, data quality remains the responsibility of the Client. WeBTG is responsible for producing the deliverable(s) to achieve the Agreed Scope.

5.     Unless explicitly stated, any third-party consultation or deliverables beyond the Agreed Scope are to be managed by the Client.

3.     WeBTG may engage any Related Bodies Corporate of WeBTG to provide Services and Deliverables to the Client for WeBTG under this Agreement. WeBTG will remain fully responsible and liable for Services and Deliverables provided under this Agreement by its Related Bodies Corporate.

4.     The term “Related Body Corporate” has the meaning given to that term in the Corporations Act 2001 (Cth).

2. Value of Services

1.     WeBTG will invoice the Client for all due amounts payable to WeBTG on a monthly basis.

2.     The Client will pay all invoiced amounts that are not disputed in good faith, within ten (10) days from its receipt of such invoices. Invoices are issued at the end of each month or at key agreed milestones (e.g. approval or project close).

3.     The Client shall pay WeBTG the fees and other compensation set out in an Agreed Scope. Any dispute is to be raised in writing within five (5) days from receipt of corresponding invoices.

4.     The cost of travel, accommodation, and other related expenses, if any, shall be approved and agreed by the Parties in writing prior to being incurred.

5.     Where required, access to the technical and office infrastructure required by WeBTG to deliver against Agreed Scope will be provided by the Client in a timely manner.

3. Taxes

1.     The Client agrees to pay any applicable sales, use, value added, goods and services, services, excise, privilege, or other taxes or assessments relating to the Services or Deliverables provided by WeBTG to the Client under this Agreement, exclusive of taxes based on WeBTG’s net income or net worth.

2.     WeBTG will invoice the Client for any taxes payable by the Client that are required to be collected by WeBTG.

3.     To the extent any applicable sales, use, value added, goods and services, services, excise, privilege, or other taxes is required to be self-assessed under reverse charge by the Client under the applicable law, the Client shall be responsible for payment thereof to the appropriate tax authority and not charge back the same to WeBTG.

4.     In subclauses 5 and 6:

1.     words or expressions which have a prescribed meaning in the GST law (as defined in the GST Act, and including any applicable legislative determinations and Australian Taxation Office public rulings) have the same meaning, unless the context otherwise requires; and

2.     “GST” means GST as defined in A New Tax System (Goods and Services Tax) Act 1999 (Cth) as amended (“GST Act”) or any replacement or other relevant legislation and regulations.

5.     The Client confirms it is registered for GST in accordance with the GST Act, and will advise WeBTG immediately should the Client cease to be so registered.

6.     Unless GST is expressly included, the consideration to be paid or provided under any other provision of this Agreement for any supply made under or in connection with this Agreement does not include GST. To the extent that any supply made under or in connection with this Agreement is a taxable supply, the GST exclusive consideration otherwise to be paid or provided for that taxable supply is increased by the amount of any GST payable in respect of that taxable supply and that amount must be paid at the same time and in the same manner as the GST exclusive consideration is otherwise to be paid or provided.  A Party’s right to payment under this clause is subject to a valid tax invoice being delivered to the recipient of the taxable supply.

4. Non-Solicitation

1.     During the term of this Agreement and for a period of twelve (12) months thereafter, neither Party shall, directly or indirectly, solicit for employment or employ, or accept services provided by any current or former employees of the other Party (including employees of WeBTG’s Related Bodies Corporate) who perform(ed) any work in connection with or related to the Services without prior written approval from the other Party.

5. Intellectual Property

1.     WeBTG agrees that the deliverables that WeBTG specifically creates for the Client under this Agreement, and detailed under Exhibit A (collectively, the “Deliverables”) will be owned by the Client.

2.     WeBTG agrees to take all reasonably necessary actions to assure the conveyance to the Client of all right, title and interest in, to and under any Deliverables, including copyright.

3.     Notwithstanding anything to the contrary, the Client acquires no rights in WeBTG’s intellectual property or other proprietary works of authorship, pre-existing or otherwise, that have not been created specifically for the Client, including, without limitation, any derivatives, enhancements or modifications which have been originated, developed, purchased or licensed by WeBTG or its Related Bodies Corporate, or by third parties under contract to WeBTG or its Related Bodies Corporate.

6. Confidentiality

1.     For a period of two (2) years from the date of disclosure of the applicable Confidential Information (as defined in clause 6.3), the Client and WeBTG shall each:

1.     hold the Confidential Information of the other in trust and confidence and avoid the disclosure or release thereof to any other person or entity by using the same degree of care as it uses to avoid unauthorized use, disclosure, or dissemination of its own Confidential Information of a similar nature, but not less than reasonable care; and

2.     not use the Confidential Information of the other Party for any purpose whatsoever except as expressly contemplated under this Agreement.

2.     Each Party may disclose the Confidential Information of the other only to those of its employees, personnel (including employees of WeBTG’s Related Bodies Corporate), having a need to know such Confidential Information and shall take all reasonable precautions to ensure that such employees and personnel comply with the provisions of clause 6.3.

3.     The term “Confidential Information” shall mean any and all information or proprietary materials (in every form and media) not generally known in the relevant trade or industry and which has been or is hereafter disclosed or made available by either Party (the “Disclosing Party”) to the other (the “Receiving Party”) in connection with this Agreement, including but not limited to, all sales and operating information, existing and potential business and marketing plans and strategies, financial information, cost and pricing information, data media, know-how, designs, drawings, specifications, source codes, technical information, concepts, reports, methods, processes, techniques, operations, devices, and the like, whether or not the foregoing information is patented, tested, reduced to practice, or subject to copyright.

4.     The obligations of either Party under clause 6.3 will not apply to information that the Receiving Party can demonstrate:

1.     was in its possession at the time of disclosure and without restriction as to confidentiality;

2.     at the time of disclosure, is generally available to the public or after disclosure becomes generally available to the public through no breach of agreement or other wrongful act by the Receiving Party;

3.     has been received from a third party without restriction on disclosure and without breach of agreement by the Receiving Party; or

4.     is independently developed by the Receiving Party or its Related Bodies Corporate without regard to the Confidential Information of the Disclosing Party.

5.     The Receiving Party may disclose Confidential Information as required to comply with law provided that the Receiving Party:

1.     gives the Disclosing Party reasonable written notice to allow the Disclosing Party to seek a protective order or other appropriate remedy;

2.     discloses only such Confidential Information as is required by law or a governmental entity; and

3.     uses commercially reasonable efforts to obtain confidential treatment for any Confidential Information so disclosed.

7. Limitation of Liability

1.     To the extent permitted by law:

1.     WeBTG shall not be liable to the Client or any other person or entity for incidental or consequential damages, including, without limitation, the loss of sales or revenues, loss of goodwill, loss of business information or loss of profits, even if advised of the possibility of such damages or loss; and

2.     WeBTG’s liability to the Client or any other person or entity arising out of, under or in connection with this Agreement (whether in contract, tort (including negligence), under indemnity or otherwise) is limited to, in the aggregate, the total amount paid by the Client under this Agreement.

2.     WeBTG will not be liable to the Client, whether in contract, tort (including negligence), under indemnity or otherwise, for loss suffered under or in connection with this Agreement to the extent that the Client or its Related Bodies Corporate contributed to such loss.

3.     The Client must take reasonable steps to mitigate its loss. WeBTG will not be responsible for any loss to the extent that the Client could have avoided or reduced the amount of the loss, by taking reasonable steps to mitigate its loss.

4.     To the extent that there is a failure to comply with a statutory guarantee in respect of the supply of services under the Australian Consumer Law, then to the extent permitted by law, WeBTG’s liability is limited to one or more of the following, at WeBTG’s sole discretion:

1.     supplying the services again; or

2.    payment of the cost of having the services supplied again.

8. Term and Termination

1.     This Agreement commences on the Commencement Date and will continue for the Period, unless otherwise agreed between the Parties in writing.

2.    Any delay or reschedule that has a meaningful impact on the tasks to be delivered my incur an expense at WeBTG’s discretion. If a specified date in the contract is cancelled (or rescheduled at short notice), the charge will be 50% of the original cost.

3.    This Agreement may be terminated in whole or in part by either Party upon written notice to the other Party if the other Party commits a material breach of this Agreement and fails to cure such breach within ten (10) days after receipt of notice of such breach or within any time period agreed between the Parties in writing.

4.    Upon termination, WeBTG is entitled to recover payment for all Services and Deliverables provided or rendered through to the effective date of termination (including for work in progress), and any other amounts set out in the Agreed Scope (including any substantiated demobilisation costs and termination charges).

5.    Upon completion of the Agreed Scope, the Client is responsible for deactivating access to any systems provided to WeBTG.

9. Warranty

1.     Warranty is a written guarantee, issued to the purchaser of an article by its manufacturer, promising to repair or replace it if necessary within a specified period of time. Warranty is to cover items that:

1.     have been identified as within the scope of an agreed piece of work;

2.    provided to the Client for testing;

3.    tested by the Client; and

4.    approved by the Client to be used in a production or live environment.

2.     For the purposes of warranty and testing, the following definitions are to be used:

1.     Critical (or Severity 1): The defect affects critical functionality or critical data. It does not have a workaround. Example: Unsuccessful installation, complete failure of a feature.

2.    Major (or High or Severity 2): The defect affects major functionality or major data. It has a workaround but is not obvious and is difficult. Example: A feature is not functional from one module but the task can be completed via 10 complicated indirect steps in another module/s.

3.    Minor (or Severity 3): The defect affects minor functionality or non-critical data. It has an easy workaround. Example: A minor feature that is not functional in one module but the same task can be completed from another module.

4.    Trivial (or Low or Severity 4): The defect does not affect functionality or data. It does not even need a workaround. It does not impact productivity or efficiency. It is merely an inconvenience. Example: Page layout changes, spelling/grammatical errors.

3.     User Acceptance Testing is to be completed by the Client before moving to a “go live” or production context. User Acceptance Testing is to ensure the production environment does not contain Critical and Major defects. Testing may occur in the manner defined by the Client to satisfy their obligations.

4.     Insufficient or inadequate testing may void any warranty.

5.     Warranty is only applicable where the changes are not impacted by external changes, which includes any other changes promoted to the production environment (including Salesforce initiated changes or updates).

6.     WeBTG warrants and represents the following for a period of one month following delivery of any Deliverable or the performance of the Services:

1.     WeBTG has the proper skill, training, and background to perform the Services in a competent and professional manner;

2.    Warranty covers Critical and Major defects as defined below and in the Managed Services Support Terms and Conditions;

3.    the Services will be performed in accordance with the Agreed Scope; and

4.    all Deliverables shall comply with the specifications in the Agreed Scope or other specifications as agreed to in writing by WeBTG and the Client.

7.     The warranty period commences from “go live”. Changes after the warranty period starts do not restart the time period.

8.     To the extent permitted by law, except as expressly provided in this Agreement, WeBTG makes no other warranties of any kind or nature whatsoever, whether express or implied, including, but not limited to, warranties of merchantability or fitness for a particular purpose or use or warranties of uninterrupted or error-free performance of computer systems, applications, software, hardware or equipment.

9.     The Client warrants that:

1.     it has the right and consents to provide WeBTG (and its personnel) with any software, documentation, physical and computing environment, data, information, including personally identifiable information, instruction, equipment, design, specification or other materials provided or made available by or on behalf of the Client to WeBTG for WeBTG and its personnel to use, access, collect, handle, modify, transfer or interface with (“Use”) in connection with the Services (“Client Inputs”); and

2.     WeBTG’s and its personnel’s Use of the Client Inputs will not infringe or otherwise violate the intellectual property rights or other rights of any third party.

10.          Excusable Events

1.     WeBTG is not liable for any delay or failure to provide the Services or Deliverables in accordance with the terms of this Agreement to the extent such delay or failure resulted from an Excusable Event. The Client acknowledges that Excusable Events may result in additional cost to the Client.

2.     The term “Excusable Event” means:

1.     any failure of the Client or its personnel to perform its obligations under this Agreement;

2.     any delay or failure of the Client to provide a Client Input, to satisfy a dependency promptly or upon the request of WeBTG or its Related Bodies Corporate, or to provide necessary information, equipment or access;

3.     any assumption contained in this Agreement which is untrue or incorrect; or

4.     any causes beyond WeBTG’s reasonable control.

11.          Miscellaneous

1.     This Agreement shall be governed by and interpreted in accordance with the laws of Western Australia.

2.     The Parties acknowledge and agree that this Agreement relates solely to the performance of services (not the sale of goods) and, accordingly, will not be governed by the Uniform Commercial Code of any State having jurisdiction. In addition, the provisions of the Uniform Computerised Information Transaction Act and United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.

3. This Agreement shall be binding upon and inure to the benefit of the Parties hereto and their respective successors and permitted assignees.

4.     All Parties are expected to comply with all relevant Equal Opportunities, Safety, Privacy legislation and associated requirements.

5.     If any provision in this Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, then such provision shall be severed from this Agreement and the remaining provisions will continue in full force.

6.     This Agreement may be executed in several counterparts, each of which will be deemed an original, and all of which taken together will constitute one single agreement between the Parties with the same effect as if all the signatures were upon the same instrument.

7.     The Client retains the exclusive right and responsibility for determining the manner and extent to which the benefit or output of Services or Deliverables may be suitable for use in connection with the Client’s business operations and offerings to third parties.

8.  This Agreement constitutes the complete and exclusive statement of the agreement between the Parties and supersedes all proposals, oral or written, and all other prior or contemporaneous communications between the Parties relating to the subject matter.