Terms and Conditions

1. INTERPRETATION

In this Agreement the following words and expressions shall have the meanings set out below:
Act: the Privacy Act 1988 (Cth) and the Privacy Amendment (Enhancing Privacy Protection) Act 2012 (Cth) as amended from time to time.
Agreement or Service Agreement – Records Management: this Service Agreement and the Schedule. Articles: a Customer document including any written or printed material or object including a sound recording, coded storage device, magnetic tape or disk, microfilm, photograph, plan, model, or painting or other pictorial or graphic work and/or other permitted materials in respect of which ZD agrees to provide the Services.
Authorised Users: the named individuals authorised by the Customer to access and use the Services.
Box(es): includes but is not limited to a cardboard box or container or carton used to store the Articles belonging to the Customer;
Commencement Date: the date of the latter of the two signatures appearing on this Agreement or, failing which, the date of any written notification by the Customer that the Customer has accepted the Services.
Customer: the Customer identified on the signature page of this Agreement.
Exit Plan: the transition plan agreed between the parties in the event the Customer wishes to remove all its Articles from ZD’s facilities upon termination or expiry of this Agreement either to the Customer or a third party replacement supplier.
Facility: the ZD sites (whether owned, leased or subcontracted by ZD) or Customer premises from which ZD shall provide certain elements of the Services as specified in the Agreement.
Fees: the fees and charges set out in the Schedule and as varied from time to time in accordance with the Agreement for the Services.
File(s) means a Customer file containing the Customer’s Articles
GST: the Goods and Services Tax which has the same meaning as in the A New Tax System (Goods and Services Act) 1999.
Image means the creation of a digital image of an Article or Articles;
Initial Term: the period as described in the Schedule which shall begin from the Commencement Date.
IPR: the marks of one party together with all design patents, software programs, copyright material, trade secrets, know-how, confidential information and includes without limitation all other kinds of “intellectual property” belonging to that party either registered or unregistered.
Out of Hours: any hours outside Working Hours.
Personal Information: means “Personal Information” as that term is defined in the Act.
Related Body Corporate: a Related Body Corporate as defined in the Corporations Act 2001 (Cth).
Services: the Services to be provided by ZD as set out in the Schedule
Tax Invoice: “Tax Invoice” as defined in the A New Tax System (Goods and Services Act) 1999.
Term: the Initial Term and any extension of that period.
Working Day: Monday to Friday (inclusive) excluding public holidays in the state in which the Services are provided. Working Hours: 8:30am to 5:00pm inclusive on a Working Day.
ZD: ZircoDATA Pty Ltd, trading as ZircoDATA and any ZircoDATA Related Body Corporate or group company.
ZD Systems: ZD systems and software made available to the Customer in connection with the Services from time to time.
Year: a continuous and uninterrupted period of twelve (12) months during the course of the Term.

2. APPLICATION OF CONDITIONS

The terms and conditions set out in the Agreement shall prevail over any inconsistent terms or conditions contained, or referred to, in any purchase order, confirmation of order or other document supplied by the Customer, or implied by law, trade custom, practice or course of dealings.

3. TERM AND APPOINTMENT
(a) The Customer appoints ZD to provide the Services in accordance with the terms of the Agreement from the Commencement Date until terminated by either party upon serving not less than thirty (30) days written notice to expire no earlier than the end of the Initial Term. In the event ZD continues to hold the Articles after the expiration or termination of this Agreement, all the terms of this Agreement will continue to apply, including those as to payment, until all the Articles have been removed from ZD’s facility.

4. ZD’S OBLIGATIONS
ZD shall:
(a) provide the Services in accordance with the terms of the Agreement and with reasonable care and skill in accordance with good industry practice; and
(b) observe proper and appropriate health and safety, reasonable security rules and regulations that apply at any of the Customer’s Facilities, which have been previously communicated to ZD in writing, save to the extent that they conflict with any of ZD’s obligations under the Agreement.

5. CUSTOMER’S OBLIGATIONS
5.1 The Customer shall:
(a) pay the Fees in accordance with the terms of the Agreement;
(b) (where required) allow ZD reasonable access to the Customer’s Facilities; and
(c) promptly notify ZD of any issues that may affect ZD’s performance of the Agreement.
5.2 If ZD’s performance of its obligations under the Agreement is prevented or delayed by any act or omission of the Customer, its agents, subcontractors, consultants or employees, ZD shall not be liable for any costs, charges or losses sustained or incurred by the Customer arising directly or indirectly from such prevention or delay.
5.3 The Customer shall be responsible for, and warrants compliance with, all contractual restrictions and all applicable laws, rules and regulations, governing the confidentiality, scanning, retention and disposition of information contained in any materials (including Articles) provided to ZD.
5.4 The Customer warrants and undertakes that:
(a) it is the owner or legal custodian of the Articles and has all necessary authority to deal with the Articles in accordance with the Agreement;
(b) it will not deliver to ZD any Articles which are (without limitation) flammable, explosive, toxic, or are otherwise dangerous or unsafe; not fit for purpose or which are regulated under any applicable law or regulation relating to hazardous materials;
(c) it will pay the Fees in case of a request for collection that is (on the part of the Customer) incorrect or cancelled by the Customer; and
(d) any representation made to ZD by the Customer or the Customer’s employees, agents and permitted assigns is true and correct and the Customer has all requisite corporate power and authority to enter into this Agreement and to carry out the transactions contemplated herein.
5.5 The Customer acknowledges and agrees that the terms of the Agreement only apply to Articles which are in ZD’s possession, custody or control. Articles only come into ZD’s possession and control when they are in an ZD controlled vehicle or are at any ZD Facility.
5.6 The Customer shall keep the Authorised Users under review and up-to-date at all times and notify ZD in writing of any changes to the Authorised Users and shall ensure the Authorised Users where relevant take all reasonable steps to safeguard user names and passwords and prevent unauthorised use of the same.

6. PRIVACY
6.1 The Customer warrants and represents that it has complied with any relevant obligations imposed on it by the Act including providing all notices and obtaining all consents necessary to enable the compliant collection, use, handling and storage of Personal Information contained in any Articles submitted to ZD in accordance with its obligations under this Agreement.
6.2 The Customer acknowledges that:
(a) ZD may be required to provide the Services in respect of Articles which contain Personal Information of the Customer or Personal Information of a third party connected with the Customer; and
(b) in providing the Services, ZD has possession of the Articles but does not access, use, disclose, manipulate, alter or control any of the Personal Information or other information contained in the Articles; and
(c) to the extent permitted by law, responsibility for all obligations pursuant to the Act in respect of the Personal Information contained in the Articles is the responsibility of the Customer and not ZD; and
(d) without limiting those obligations of the Customer as described in clause 6.2(c), the Customer will provide ZD with reasonable assistance to meet any requirements pursuant to the Act.
6.3 The Customer shall not request, require or cause ZD to breach the Act in any way but if it does, the Customer fully indemnifies ZD for any resulting liability, fines, losses or damages.
6.4 To the extent that any Personal Information of the Customer or third party Personal Information is required to be held by ZD in accordance with this Agreement or otherwise, ZD will comply with its obligations under the Act in respect of such Personal Information.
6.5 The Customer acknowledges that ZD has formulated a privacy policy in accordance with the Act, which sets out in detail its respective industry requirements in respect of privacy and describes the way in which ZD handles the Personal Information provided by the Customer (the “Privacy Policy”). The Privacy Policy is located at http://www.zircodata.com.au/privacy-policy/
6.6 The Customer agrees that the treatment of any Personal Information that it provides to ZD is to be governed by the Privacy Policy, as varied from time to time, and that the Customer will comply with any of its obligations pursuant to the Privacy Policy.
6.7 ZD will take reasonable technical and organisational measures to protect the Articles while the Articles are at the ZD Facility against unauthorised or unlawful processing and accidental loss, theft, use, disclosure, destruction and/or damage and which includes:
(a) keeping the Articles private and confidential;
(b) preventing the disclosure of the Articles to third parties to the fullest extent possible; and
(c) ensuring that any of ZD’s employees and/or approved subcontractors engaged in providing the Services are subject to a duty of confidentiality.
6.8 ZD shall act only on reasonable instructions from the Customer in respect of such Articles. Except as required for the provision of the Services, ZD shall not retain any copy of the Articles.

7. FEES AND PAYMENT
7.1 The Fees shall unless otherwise agreed be invoiced monthly in advance for all Services.
7.2 The Customer shall pay all Tax Invoices within thirty (30) days of the date of the Tax Invoice. All Fees to be paid to ZD by the Customer are exclusive of GST. The Customer will be required to pay the applicable GST component on each Tax Invoice.
7.3 ZD agrees that the Fees will remain fixed for the first twelve (12) months of the Agreement. Thereafter, the Customer agrees that the Fees will increase annually by no more than the greater of CPI and 3%, by providing the Customer with at least thirty (30) days written notice (the “Fee Notice”). The Customer will be deemed to have accepted those adjusted Fees upon receipt of the Fee Notice. For the purposes of this clause, “CPI” means the percentage increase in the Consumer Price Index for the All Groups Weighted Average over 8 Capital cities, based on the increase to the CPI during the twelve months ending on the quarter prior to the date of the price increase.
7.4 In addition to clause 7.3 of this Agreement, ZD may, acting reasonably, alter the Fees at any time in the event of:
(a) any unusual increase in the cost of providing the Services to the Customer that is beyond ZD’s control including but not limited to road tolls, congestion or similar charges or increases in fuel costs; and
(b) any variations to the scheduled Services at the request of the Customer including but not limited to changes to the frequency of the Services.
For the avoidance of doubt, any increase pursuant to clause 7.4 of the Agreement will be limited to and in proportion with overall cost increases.
7.5 If the Customer fails to pay any undisputed sums due under the Agreement on the due date for payment then ZD may, in its absolute discretion and at the Customer’s sole cost, within five (5) Working Days after issuing a written notice to the Customer to cure the default (which default remains uncured after such period):
(a) exercise a possessory lien over the Articles and suspend all or any part of the Services and require payment of all amounts due in cleared funds before recommencing the Services;
(b) charge, and the Customer must pay to ZD, interest at the rate of 7.5% per annum (minimum fee of $10) on any outstanding undisputed sums from the due date of payment until the outstanding amount is paid in full; and/or
(c) immediately terminate the Agreement by written notice to the Customer.
7.6 Without limiting clause 7.5, if the Customer fails to pay all undisputed sums within 3 months of the due date of payment or no response is received from the Customer in relation to a demand for payment, ZD may, at its election and at the Customer’s sole cost, either:
(a) demand in writing that the Customer collect the Articles from ZD within 14 days and if the Customer does not collect the Articles within 14 days from ZD, ZD may deal with the Articles as being abandoned in accordance with clause 7.7; or
(b) deliver the Articles to the Customer’s address and ZD will have no liability to the Customer in respect of theft, loss, damage or destruction of the Articles once they have been delivered to the appropriate address.
7.7 If ZD makes a demand pursuant to clause 7.6
(a) and the Customer fails to remove the Articles in accordance with the demand; (a) the Articles will be taken to be abandoned and the Customer agrees that ZD may, as the Customer’s authorised agent (in its absolute discretion and without being obliged to do so) destroy the Articles without further notice to the Customer;
(b) the Customer must pay ZD for all reasonable costs, expenses, damages, claims, actions or liability whatever arising from or in connection with ZD exercising its rights under clause 7 including the fees for the destruction of the Articles as set out in the Schedule; and
(c) the Customer acknowledges that, as the Articles have no market value and it would be impossible to sell the Articles to a third party, the destruction of the Articles is the only suitable method for the removal of the Articles from the ZD facility if abandoned under this clause 7.

8. INTELLECTUAL PROPERTY RIGHTS
8.1 All IPR in the Services and any other processes or methods created, supplied or used by ZD from time to time, belong to ZD.
8.2 Any IPR belonging to the Customer as at the Commencement Date shall remain IPR of the Customer. The Customer shall indemnify and keep ZD indemnified from and against any and all costs, claims, damages, losses and expenses (including legal expenses) arising from ZD’s use of such IPR or its dealing with the Articles in accordance with this Agreement.

9. CONFIDENTIALITY
9.1 In this clause 9, “Confidential Information” means all confidential information actually disclosed by one party (“Disclosing Party”) to the other (“Receiving Party”) whether before or after the date of the Agreement .
9.2 During the Term of the Agreement and after termination or expiry of the Agreement for any reason the Receiving Party shall:
(a) not use Confidential Information for a purpose other than the performance of its obligations under the Agreement;
(b) not disclose Confidential Information to any person except with the prior written consent of the Disclosing Party or in accordance with clause 9.3 and 9.4 of this Agreement; and
(c) make every effort to prevent the unauthorized use or disclosure of Confidential Information.
9.3 During the Term of the Agreement, the Receiving Party may disclose Confidential Information to any of its directors, officers, employees and sub-contractors and (a “Recipient”) to the extent that disclosure is absolutely necessary for the purposes of the Agreement.
9.4 Before disclosure of Confidential Information to a Recipient, the Receiving Party shall ensure that such Recipient is made aware of and complies with the Receiving Party’s obligations of confidentiality under the Agreement as if the Recipient was a party to the Agreement.
9.5 Clauses 9.2 to 9.4 of this Agreement does not apply to Confidential Information which:
(a) is or becomes at any time publicly known other than by the Receiving Party’s or Recipient’s breach of the Agreement; or
(b) can be shown by the Receiving Party to have been known by the Receiving Party before disclosure by the Disclosing Party to the Receiving Party; or
(c) is or becomes available to the Receiving Party otherwise than pursuant to the Agreement and free of any restrictions as to its use or disclosure; or
(d) is required to be disclosed by law.
9.6 The obligations under this clause 9 survive the termination or expiry of this Agreement.

10. LIMITATION OF LIABILITY
10.1 Nothing in this Agreement shall be deemed to be an exclusion or limitation (or attempt to create an exclusion or limitation) of either party’s liability for death or personal injury claims arising from a party’s negligence and/or any other matter for which it would be unlawful for such party to exclude or limit, or attempt to exclude or limit, its liability.
10.2 The Customer acknowledges and agrees that:
(a) knowledge by ZD of the contents of the Articles is limited to the physical existence of the Articles and further that ZD has taken no steps (nor is it required to or will) to verify the existence of, or the nature, content, value, or meaning of the Articles;
(b) the value of the contents of the Articles may be disproportionate to the Fees; and
(c) in view of clause 10.2 (a) and/or (b) above it is fair and reasonable for ZD to exclude and limit its liability as provided in the Agreement.
10.3 ZD shall not be liable in case of loss, destruction, or damage of or to the Articles to the extent that items are in the Customer’s possession, at the Customer’s Facility or have been transferred to or collected by a third party carrier or other service provider appointed by the Customer, at the Customer’s direction or approval.
10.4 The Customer acknowledges and agrees that ZD shall not be responsible or liable whatsoever for the contents of the Articles and ZD shall have no liability to the Customer or any third party for the destruction of Articles at the direction of the Customer.
10.5 The Customer agrees to indemnify ZD from any liability to the Customer or any third party in case of destruction of the Articles at the direction of the Customer.
10.6 The Australian Consumer Law and certain other laws may give the Customer rights in relation to the supply of goods and services by ZD under this Agreement that cannot lawfully be excluded (Non-Excludable Guarantees). To the extent permitted by law ZD excludes all other conditions, warranties and terms that, in the absence of this clause, may otherwise be implied into this agreement.
10.7 To the extent ZD is permitted by law to do so, ZD’s liability pursuant to any Non-Excludable Guarantees is limited to:
(a) in the case of goods, supplied by ZD, that fail to comply with a Non-Excludable Guarantee, the replacement of those goods or payment of the cost of replacing those goods; and
(b) in the case of services, supplying the services again or the payment of the cost of having the services supplied again.
10.8 To the extent permitted by law to do so, ZD’s liability for loss or damages (other than pursuant to a Non-Excludable Guarantee) that arise in relation to the supply of goods or services pursuant to this agreement (whether arising under contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise) including, but not limited to, loss or destruction of, or damage to an Image or Images stored in Record Centres:
(a) shall be limited to the lower of the proven losses arising directly from ZD’s default or the total Fees paid by the Customer to ZD for the Services or for the Image on Demand Services received in the period three (3) months prior to the occurrence of such liability; and
(b) shall not include:
(i) loss of profits, loss of business, loss of revenue, loss of contract, loss of goodwill, loss of anticipated earnings or savings (whether any of the foregoing are direct, indirect or consequential loss or damage); or
(ii) loss of use or value of any data or equipment including software, wasted management time, operation or other time (whether any of the foregoing are direct, indirect or consequential); or
(iii)any indirect or consequential loss or damage; or
(iv) the Customer’s software or data including incorrect or failure to back up data, the poor performance or nonperformance of the Customer’s systems; or
(v)the Customer’s decision not to, or its failure to implement any reasonable change to Customer’s environment that supports the Services that may be advised by ZD in writing.
10.9 The Customer agrees that it is the Customer’s responsibility to obtain all necessary insurances (at its own cost) to cover all loss and damage to the Customer’s Articles and material arising out of or in connection with the Customer’s use of the Services.

11. TERMINATION
11.1 Either party may terminate the Agreement by notice in writing to the other:
(a) if such other party is in material or persistent breach of its obligations under the Agreement and such other party fails to remedy such breach within twenty (20) Working Days of service of a written notice, specifying the breach and requiring it to be remedied;
(b) if such other party has a petition for winding up or for an administration order presented against it or passes a resolution for winding up or calls any meeting of its creditors or has an administrative or other receiver or an administrator of all of or any part of its undertaking or assets appointed or (being an individual or partnership) has a bankruptcy petition presented against it or similar situation arises; or (c) as provided in clause 3 of this Agreement.
11.2 Subject to clause 11.3, upon the termination of the Agreement for any reason, the Customer shall be liable to make an upfront payment to ZD in respect of the cost of ZD returning the Articles to the Customer, plus any outstanding debts owed, including but not limited to any permanent withdrawal and retrieval fees.
11.3 If the Agreement is terminated by ZD for convenience or for ZD’s breach pursuant to clause 11.1(a), the Customer shall be liable to pay ZD in respect of the cost of ZD returning the Articles to the Customer, plus any outstanding debts owed, including but not limited to retrieval fees.

12. NOTIFICATIONS
12.1 Any notification required under the Agreement must be sent to the interested party at the address provided on the signature page of this Agreement or the then current registered address. Notifications sent to ZD should be marked for the attention of ZD’s Chief Financial Officer and must also be copied to ZD’s nominated main contact as shall be notified to the Customer from time to time (if any) or ZD’s Customer Services Department.
12.2 All notices that are required to be given under the Agreement shall be in writing and shall be sent to the registered address of the respective party, by express post or email and shall be deemed to have been received:
(a) by express post, forty eight (48) hours after the date of mailing; or
(b) by email or facsimile, immediately upon confirmation of transmission.
12.3 Both parties agree to keep the other party promptly informed in writing of any changes of address, telephone contact numbers, and email address. Any notice provided under this Agreement will be deemed to have been sufficiently sent and received by a party, if sent to the last address and email address advised in writing by that party to the other party.

13. AUDIT RIGHTS
13.1 ZD shall provide to the Customer or the Customer’s internal audit staff or properly appointed external auditors, as the Customer may notify ZD in writing from time to time (“Auditors”), or the Customer’s regulators (“Regulators”), access to the Customer’s records (but excluding any financial or proprietary information of ZD or ZD’s other Customers) at the ZD Facility at such reasonable times that ZD considers to be appropriate subject at all times to the Customer:
(a) providing at least ten (10) Working Days’ prior written notice to ZD;
(b) complying with ZD’s security measures and policies at the ZD Facility;
(c) ensuring that prior to any access to the ZD Facility all the Auditors or Regulators sign ZD’s non-disclosure agreement;
(d) (except where an audit is imposed by the Regulators or unless otherwise agreed by the parties in writing) ensure that only one such audit shall take place in any one (1) Year; and
(e) paying any reasonable costs incurred by ZD at ZD’s then prevailing rate in order for ZD to facilitate the Auditors or Regulators to conduct the audit.

14. JOINT PARTIES
Where the Customer is two or more persons, they shall be deemed to have entered into, and be bound by, the Agreement jointly and severally and agree that service of notices on one is deemed service on the other/others and that delivery of the Articles to one satisfies ZD’s obligations in that respect to both.

15. GENERAL
15.1 No addition to, or modification of, any provision in the Agreement shall be binding on either party unless made in writing and signed by duly authorised representatives of both parties.
15.2 ZD shall not be liable for any delay or inability to perform Services caused by acts of God, fire flood or storm, pandemic, epidemic government actions, labour unrest, riots, terrorist acts, unusual traffic delays or other causes beyond its control. If such inability persists for a continuous period of more than thirty (30) days, either party may terminate the Agreement by notice in writing to the other.
15.3 ZD may use sub-contractors to provide parts of the Services but such use shall not relieve ZD of its obligations under the Agreement.
15.4 The Customer may not assign or otherwise transfer the Agreement or any of its rights or obligations whether in whole or in part without the prior written consent of ZD.
15.5 ZD may transfer and/or assign any rights or obligations under this Agreement in whole or in part without the Customer’s approval to a Related Body Corporate or a ZD group company.
15.6 No failure of either party to enforce its rights under the Agreement at any time for any period shall be construed as a waiver of such rights.
15.7 If any provision in the Agreement is found or held to be invalid or unenforceable, then the meaning of such provision shall be construed, to the extent feasible, so as to render the provision enforceable and which most closely reflects the intent of entering into the Agreement.
15.8 The Agreement constitutes and contains the entire agreement of the parties and supersedes any prior written agreement.
15.9 By entering into this Agreement, the Customer consents to receive relevant information and materials regarding ZD’s service offerings (the “Information”). The Information will be sent to the Customer via electronic message as defined pursuant to the Spam Act 2003 (Cth) from ZD or ZD’s employees, agents and/or its permitted assigns.
15.10 The Agreement shall be governed by and construed in accordance with the laws of Victoria and the parties irrevocably submit to the exclusive jurisdiction of the Australian Courts.
15.11 The parties acknowledge and agree that this Agreeement may be executed by use of an Electronic Signature, and if a party executes this Agreement using an Electronic Signature, then:
(a) the party is taken to have entered ito this agreement in electronic form;
(b) the Electronic Signature is deemed to be an original execution of the Agreement by the party for the purposes of this Agreement; and
(c) the party must promptly provide to the other party such evidence of the
Electronic Signature as the other party, within reason, may require. Electronic Signature means an electronic method of signing that identifies the person and indicates their intention to sign the Agreement which may include, but is not limited to, software programs such as DocuSign or Conga.

16. EXIT PLAN
16.1 Both parties may agree an Exit Plan during the term of this Agreement. Unless otherwise agreed by the parties the following periods of time shall apply to the Exit Plan:
(a) within thirty (30) Working Days of the Customer serving notice to terminate the Agreement; or
(b) within thirty (30) Working Days of ZD serving notice to terminate the Agreement,
ZD shall produce an Exit Plan for the Customer.