Professional Services Agreement
Effective 18 January 2025. These terms update and replace Tiller Technical's services terms and conditions, in place since 22 February 2021.
This Professional Services Agreement (Agreement) sets out the terms on which Tiller Marine Solutions Pty Ltd (ACN 632 135 356) as trustee for the Tiller Marine Trust, trading as Tiller Technical (ABN 89 370 519 739) (Tiller, we, us) provides professional services to its customers.
By executing, accepting or instructing Tiller to proceed with a Scope of Works, Service Order, quotation or proposal that references this Agreement (each a Scope of Works), the customer named in that Scope of Works (Customer, you) agrees to be bound by this Agreement. The version of this Agreement published on this page at the date the Scope of Works is executed applies to that Scope of Works. Where Tiller and the Customer have signed a separate Master Services Agreement, that agreement prevails over this Agreement to the extent of any inconsistency.
1. Definitions
In this Agreement: Background IP means intellectual property rights owned by a party or a third party (including Helm Operations) existing before, or developed independently of, this Agreement; Business Day means a day other than a Saturday, Sunday or public holiday in Western Australia; Customer IP means intellectual property rights the Customer held prior to the Scope of Works; Developed IP means intellectual property rights created in the course of performing the Services, excluding Background IP and Customer IP; Fees means the fees set out in the applicable Scope of Works; Helm CONNECT means the marine operations management software platform developed, hosted and licensed by Helm Operations; Helm Operations means Helm Operations Software Inc. and its related bodies corporate, of which Tiller is an authorised reseller and services partner; Services means the services described in the applicable Scope of Works; and Work Product means the deliverables Tiller provides to the Customer as part of the Services.
2. The Services
2.1 Tiller will perform the Services described in each executed Scope of Works with due skill, care and diligence, in a competent, efficient and professional manner consistent with good industry practice, and in a safe and timely manner.
2.2 Each Scope of Works forms a separate agreement incorporating this Agreement. To the extent of any inconsistency, the Scope of Works prevails over this Agreement for that engagement.
2.3 Any service levels or response targets set out in a Scope of Works are objectives that Tiller will aim to meet; they are not guaranteed outcomes.
2.4 If Tiller becomes aware that it may not deliver any part of the Services by an agreed date, it will notify the Customer as soon as reasonably practicable, take reasonable steps to minimise the delay, and agree a revised date with the Customer, both parties acting reasonably.
2.5 Changes to scope. Either party may propose a change to the Services. A change is effective only when agreed in writing between the parties' representatives (email is sufficient), including any adjustment to the Fees and timeframes. Tiller is not obliged to perform work outside the agreed Scope of Works, and any such work performed at the Customer's request without an agreed change is chargeable at Tiller's then-current rates.
2.6 Acceptance. The Customer must review each deliverable promptly and notify Tiller in writing of any material non-conformance with the Scope of Works within 10 Business Days of delivery. If no such notice is given within that period, or the Customer uses the deliverable in its operations, the deliverable is taken to be accepted. Where a deliverable materially fails to conform, Tiller will re-perform the relevant Services at no additional charge as the Customer's remedy, subject to clause 9.5.
3. Nature of the Services
The Customer acknowledges and agrees that:
(a) the Services comprise advisory, consultancy, configuration, implementation, training and support services in respect of Helm CONNECT and related applications, together with the coordination of software development performed by Helm Operations, and do not include the performance of physical works at any site, port or vessel;
(b) Helm CONNECT is developed, maintained, hosted and licensed by Helm Operations. Tiller does not develop, host, operate or control Helm CONNECT, and Tiller has no liability for the performance, availability, security or any defect of Helm CONNECT, which are matters governed by the terms applying between the Customer and Helm Operations;
(c) the Customer remains responsible for its own operational and business decisions, its use of Helm CONNECT, and the accuracy and completeness of the data it enters into or maintains in Helm CONNECT; and
(d) recommendations, configurations and best practice guidance provided by Tiller are advisory in nature, and the Customer is responsible for determining whether, and how, to implement them;
(e) any other third party software, products or services used in connection with the Services are governed by the terms of the relevant third party provider, and Tiller is not liable for their performance or availability; and
(f) the Customer is responsible for maintaining appropriate backups of its own data and systems.
4. Customer responsibilities
4.1 The Customer will: cooperate with Tiller in the performance of the Services; provide timely access to the sites, systems, information and personnel reasonably required; obtain any approvals required for Tiller to perform the Services; ensure Tiller is permitted to use any third party information or intellectual property the Customer requires Tiller to use; and ensure that information provided to Tiller is accurate, complete and kept up to date.
4.2 Tiller will rely on the information it is provided (including information provided by third parties) and will not verify it unless expressly agreed as part of the Services. Tiller is not liable for any default to the extent it arises from the Customer failing to fulfil its obligations, or from information supplied being or becoming inaccurate or incomplete.
4.3 Customer delay. If the performance of the Services is delayed or suspended because the Customer fails to fulfil its obligations under this clause 4, requests a pause, or is otherwise not ready to proceed (Customer Delay), then:
(a) all affected delivery dates and milestones are extended by at least the period of the Customer Delay;
(b) Tiller may reallocate its personnel and subcontractors to other engagements for the duration of the Customer Delay. When the Customer is ready to resume, Tiller will reschedule the remaining Services based on the availability of its personnel at that time, and does not guarantee that the original personnel or delivery timeframes will remain available;
(c) Tiller may invoice for all Services performed, and expenses and non-cancellable third party commitments incurred, up to the commencement of the Customer Delay; and
(d) if a Customer Delay continues for more than 60 consecutive days, either party may terminate the affected Scope of Works by written notice, in which case the Customer must pay all Fees for Services performed, and expenses incurred, up to termination.
5. Fees, expenses and payment
5.1 The Customer will pay the Fees set out in each Scope of Works. Unless the Scope of Works states otherwise, Fees are fixed for the term of that Scope of Works. Unless the Scope of Works expressly states a fixed price, any estimate of hours, fees or completion dates is a good-faith estimate only, and the Services are charged on a time and materials basis at the rates in the Scope of Works.
5.2 Tiller is entitled to reimbursement of expenses reasonably and necessarily incurred in performing the Services, provided any expense over $100 is approved in writing by the Customer in advance.
5.3 Tiller will invoice monthly, or as otherwise set out in the Scope of Works. Each invoice will be a valid tax invoice and will quote any purchase order or reference number the Customer has provided.
5.4 The Customer will pay each invoice within 30 days of the invoice date, unless different payment terms are stated in the Scope of Works.
5.5 All amounts are stated exclusive of GST. Where GST is payable on a supply under this Agreement, the recipient will pay the GST amount in addition to the stated amount, subject to receipt of a valid tax invoice.
5.6 Late payment. If an undisputed invoice remains unpaid after its due date, Tiller may charge interest on the overdue amount at 4% per annum above the Reserve Bank of Australia cash rate, calculated daily from the due date until payment. If an undisputed invoice remains unpaid 14 days after Tiller gives written notice of the overdue amount, Tiller may suspend the Services until payment is received. Suspension does not relieve the Customer of its obligation to pay, and resumption of suspended Services is scheduled in accordance with clause 4.3(b).
5.7 The Customer must pay all invoiced amounts in full without set-off, counterclaim or deduction, except for amounts genuinely disputed in good faith and notified to Tiller in writing before the due date.
5.8 For a Scope of Works with a term longer than 12 months, Tiller may adjust its rates once in each 12 month period by written notice of at least 30 days, by no more than the annual change in the Consumer Price Index (All Groups, Perth) unless otherwise agreed.
6. Personnel and subcontractors
6.1 Tiller performs the Services as an independent contractor. Nothing in this Agreement creates a partnership, joint venture, employment, fiduciary or agency relationship between the parties.
6.2 Tiller may use appropriately qualified, experienced and competent subcontractors to perform the Services, including engaging Helm Operations to provide software development services in respect of Helm CONNECT. Tiller remains responsible for the performance of the Services by its subcontractors.
6.3 During a Scope of Works and for 12 months after it ends, neither party will, without the other's prior written consent, solicit or engage the other party's personnel, or (in the Customer's case) any Tiller supplier or subcontractor introduced under that Scope of Works, to provide services the same as or similar to the Services.
7. Intellectual property
7.1 Customer IP remains the property of the Customer. Background IP remains the property of Tiller or the relevant third party, including all intellectual property rights of Helm Operations in and to Helm CONNECT.
7.2 Unless otherwise agreed in writing, Developed IP vests in Tiller on creation.
7.3 Subject to clause 7.7, Tiller grants the Customer a perpetual, irrevocable, non-exclusive, royalty-free licence to use, reproduce, adapt and modify the Work Product, and any Developed IP incorporated in the Work Product, for the Customer's business purposes (including by contractors acting on the Customer's behalf). The licence in respect of a deliverable takes effect on payment in full of the Fees for the Services under which that deliverable was produced.
7.4 The Customer grants Tiller, for the term of the applicable Scope of Works, a non-exclusive, royalty-free licence to use the Customer IP solely as required to perform the Services, including the right to sublicense to subcontractors engaged in the performance of the Services.
7.5 Each party warrants that it has the right to grant the licences it grants under this Agreement and that its contributions do not infringe the intellectual property rights of any third party.
7.6 The Customer indemnifies Tiller against any claim by a third party, and any loss Tiller reasonably incurs in connection with such a claim, to the extent it arises from: (a) materials, information or intellectual property provided by the Customer infringing the rights of that third party; or (b) the Customer's use of a deliverable other than as contemplated by the Scope of Works. This indemnity is reduced proportionally to the extent that Tiller's own act or omission contributed to the claim.
7.7 Payment condition. While any undisputed invoice remains unpaid after its due date, Tiller may withhold delivery of further Work Product, and the licence granted under clause 7.3 in respect of unpaid deliverables does not take effect (or, to the extent it has taken effect in respect of unpaid deliverables, is suspended) until payment in full is received. This clause does not affect deliverables that have been paid for, and does not entitle Tiller to remove, alter or delete any data, configuration or work already delivered into the Customer's systems.
8. Confidentiality
8.1 Each party must keep confidential all confidential information of the other party disclosed in connection with this Agreement or a Scope of Works, and may disclose it only: with the other party's consent; to its personnel and advisors who need it and are bound to keep it confidential; or to the extent required by law or a regulatory requirement.
8.2 Each party must take reasonable steps to safeguard the other's confidential information and must notify the other promptly, and in any event within 72 hours, of any actual or suspected unauthorised access, use or disclosure.
8.3 Confidential information does not include information that is or becomes public other than through a breach of this Agreement, or that was known to the recipient before disclosure.
8.4 Privacy. Each party must comply with the Privacy Act 1988 (Cth) and any other applicable privacy laws in respect of personal information collected, used or disclosed in connection with this Agreement, and must promptly notify the other of any eligible data breach involving that information.
9. Limitation of liability
9.1 Each party's liability under or in connection with this Agreement is reduced proportionally to the extent that any act or omission of the other party caused or contributed to the liability.
9.2 Subject to clauses 9.4 and 9.5, each party's total aggregate liability under or in connection with a Scope of Works is limited to the Fees paid by the Customer under that Scope of Works in the 6 months prior to the claim.
9.3 Subject to clauses 9.4 and 9.5, neither party is liable to the other for any loss of profit, revenue, anticipated savings, opportunity, goodwill or data, or any indirect, special, incidental, consequential or punitive loss or damage, however arising.
9.4 Nothing in this clause 9 limits or excludes a party's liability for death of or personal injury to any person, or physical loss of or damage to tangible property, to the extent caused by the negligence or wilful misconduct of that party or its personnel, or a party's liability for its own fraud, or the Customer's obligation to pay the Fees.
9.5 Nothing in this Agreement excludes, restricts or modifies any right or remedy the Customer has under the Australian Consumer Law or any other law that cannot lawfully be excluded. Where liability for breach of a non-excludable guarantee can be limited, Tiller's liability is limited, at Tiller's option, to resupplying the relevant services or paying the cost of having them resupplied.
9.6 Subject to clause 9.5, and to the maximum extent permitted by law, all conditions, warranties, guarantees and representations not expressly set out in this Agreement or the applicable Scope of Works are excluded.
9.7 A party must take reasonable steps to mitigate any loss it suffers or incurs in connection with this Agreement.
10. Force majeure
Neither party is liable for a failure or delay in performing its obligations (other than an obligation to pay money) caused by an event beyond its reasonable control, provided it notifies the other party promptly, uses reasonable diligence to overcome the event, and resumes performance as soon as reasonably possible.
11. Term and termination
11.1 Each Scope of Works commences on the date stated in it and continues until the Services are completed, it expires, or it is terminated in accordance with this clause.
11.2 Either party may terminate a Scope of Works by written notice if the other party commits a material breach and, where the breach is capable of remedy, fails to remedy it within 30 Business Days of written notice requiring it to do so, or if the other party becomes insolvent, enters liquidation or administration, or is unable to pay its debts as they fall due.
11.3 The Customer may terminate a Scope of Works without cause on 20 Business Days' written notice. On termination, the Customer must pay all Fees for Services performed, and expenses incurred, up to the date of termination.
11.4 Termination does not affect rights accrued before termination. Clauses 3, 5.6, 5.7, 6.3, 7, 8, 9, 12, 13 and 14 survive termination.
12. Disputes
12.1 Before commencing court proceedings (other than for urgent interlocutory relief), a party must give the other written notice of the dispute, and senior representatives of each party must meet and attempt in good faith to resolve it. If the dispute is not resolved within 28 days of the notice, either party may commence proceedings.
12.2 Pending resolution of a dispute (including a payment dispute), the parties will, where reasonably practicable, continue to perform their obligations.
13. General
13.1 Neither party may assign, novate or encumber its rights or obligations under this Agreement without the prior written consent of the other party.
13.2 This Agreement together with the applicable Scope of Works records the entire agreement between the parties in relation to the Services, and supersedes any terms and conditions contained in or referenced by a Customer purchase order or similar document, which have no effect except to the extent expressly agreed in writing by Tiller.
13.3 A variation to a Scope of Works is effective only if agreed in writing by both parties. Tiller may update this Agreement from time to time by publishing a new version on this page; the version current at the date a Scope of Works is executed continues to apply to that Scope of Works.
13.4 A failure to enforce a provision is not a waiver of it. If a provision is unenforceable, it is severed and the remainder of this Agreement continues in effect.
13.5 Publicity. Tiller may identify the Customer by name and logo as a customer of Tiller in its marketing materials and proposals, unless the Customer opts out by written notice at any time. Tiller will not disclose the terms of any Scope of Works without the Customer's consent.
13.6 Notices. A notice under this Agreement must be in writing and sent by email to the address stated in the Scope of Works (or as later notified). An emailed notice is taken to be received on the next Business Day after it is sent, unless the sender receives an automated message that it was not delivered.
14. Governing law
This Agreement is governed by the laws of Western Australia, and the parties submit to the exclusive jurisdiction of the courts of Western Australia and the courts competent to hear appeals from them.
Contact
Tiller Marine Solutions Pty Ltd as trustee for the Tiller Marine Trust, trading as Tiller Technical
ABN 89 370 519 739 · ACN 632 135 356