Terms and Conditions

These terms and conditions are between the parties described in the Schedule, together the Parties and each a Party. These terms and conditions and the Schedule form the entire agreement under which we will provide the Goods and Services to you (together, the Agreement).

1. ACCEPTANCE

1.1. You have requested the Goods and Services set out in the Schedule, and accept this Agreement by:

1. signing and returning this Agreement.
2. sending an email accepting this Agreement (expressly or impliedly); or
3. instructing us to proceed with the Goods and Services or making any payment of the Price (including any deposit).

1.2. Please read this Agreement carefully and contact us if you have any questions.

2. GOODS AND SERVICES

2.1. We agree to provide you the Goods and Services in accordance with this Agreement and all relevant laws

2.2. You acknowledge and agree that any dates for delivery or for completion notified by us are estimates only, and we will have no Liability to you for failing to meet any delivery or milestone date.

2.3. We may provide the Goods and Services to you using our Personnel, and they are included in this Agreement.

2.4 All variations to the Goods and Services must be agreed in writing between the Parties and will be priced in accordance with any schedule of rates provided by us, or otherwise as reasonably determined by us. If we consider that any instruction or direction from you constitutes a variation, then we will not be obliged to comply with such instruction or direction unless agreed in accordance with this clause 2.4.

3. PRICE AND PAYMENT

3.1. You agree to pay us the Price and all other reasonable expenses or disbursements properly incurred by us in the provision of the Goods and Services, in accordance with the Payment Terms. All amounts are stated in Australian dollars and are exclusive of GST (unless otherwise stated).

3.2. Unless otherwise agreed between the Parties, any deposit in the Schedule must be paid before we commence the provision of the Goods and Services.

3.3. If any amounts are unpaid 7 days after the payment date, we may charge interest at a rate equal to the Reserve Bank of Australia’s cash rate from time to time plus 8% per annum (calculated daily and compounding monthly) or we may suspend the provision of the Goods and Services until we receive payment.

4. YOUR OBLIGATIONS AND WARRANTIES

4.1. You represent, warrant, acknowledge and agree that:

1. here are no legal restrictions preventing you from engaging us or agreeing to this Agreement.
2. you have not relied on any representations or warranties made by us in relation to the Goods and Services (including as to whether the Goods and Services are or will be fit or suitable for your particular purposes), unless expressly stipulated in this Agreement
3. you will cooperate with us, and provide us with all documentation, information, instructions, and access necessary to enable us to provide the Goods and Services, as requested by us, from time to time, and in a timely manner.
4. the information you provide to us is true, correct, and complete.
5. you will not infringe any third-party rights in working with us and receiving the Goods and Services.
6. you will provide us and our Personnel with sufficient access, free from harm or risk to health or safety, to any relevant premises (including any facilities at the premises), to enable us to provide the Goods and Services, including at the dates and times that we may reasonably request; and
7. you are responsible for obtaining, and providing to us if necessary, any access, consents, licences, approvals, and permissions from other parties necessary for the Goods and Services to be provided, at your cost.

5. YOUR STATUTORY RIGHTS

5.1. Certain legislation, including the Australian Consumer Law (ACL) in the Competition and Consumer Act 2010 and similar consumer protection laws and regulations, may confer you with rights, warranties, guarantees and remedies relating to the Goods and Services which cannot be excluded, restricted or modified (Statutory Rights). Nothing in this Agreement excludes your Statutory Rights as a consumer under the ACL.

5.2. You agree that our Liability for the Goods and Services is governed solely by the ACL and this Agreement.

5.3. Subject to your Statutory Rights, we exclude all express and implied warranties, representations and guarantees of any kind (whether under statute, law, equity or on any other basis) and all materials, work, goods and services (including the Goods and Services) are provided to you without warranties, representations and guarantees of any kind.

6. DELIVERY, TITLE AND RISK

6.1. If this Agreement states that:

1. we are responsible for delivering the Goods to you, we will use reasonable endeavours to deliver the Goods to the premises by the delivery time, as notified by us to you; or
2. you are responsible for collecting the Goods from us, we will use reasonable endeavours to make available the Goods, and you agree to collect the Goods, at the collection location by the collection time, as notified by us to you. You agree to comply with any policies and procedures which apply at the relevant collection location.

6.2. Title in the Goods will remain with us until all amounts due and payable to us under this Agreement are paid in full. Risk in the Goods will pass to you on delivery of the Goods to you or collection of the Goods by you (as applicable).

You agree that we hold a general lien over any Goods owned by us that are in your possession, for the satisfactory performance of your obligations under this Agreement. You agree that this Agreement and your obligations under this Agreement create a registrable security interest in favour of us, and you consent to the security interest (and any other registrable interest created in connection with this Agreement) being registered on any relevant securities register (and you must do all things to enable us to do so).

7. TERM AND TERMINATION

7.1. This Agreement will commence on the Start Date, and will continue until the End Date, unless terminated earlier in accordance with its terms

7.2. Either Party may terminate this Agreement if the other Party breaches a material term of this Agreement, and that breach has not been remedied within 10 business days of being notified by the relevant Party.

7.3. On termination or expiry of this Agreement, you agree that:

1. any amounts paid for Goods and Services rendered by us are non-refundable.
2. you agree to pay us all amounts due and payable to us under this Agreement (including for all Goods and Services provided by us) up to the date of termination, as a debt immediately due and payable; and
3. you agree to return or give us access to recover all property belonging to us on request (including any Intellectual Property or Confidential Information), and to give us or our Personnel such rights of access necessary to exercise our rights under this clause.

7.4. The accrued rights, obligations and remedies of the Parties are not affected by termination of this Agreement.

8. LIABILITY, INDEMNITY AND EXCLUSIONS

8.1. Exclusions: Despite anything to the contrary, to the maximum extent permitted by law, we will not be liable for, and you waive and release us from and against, any Liability caused or contributed to by (whether directly or indirectly):

1. acts or omissions of you or your Personnel (including any works, goods or services provided by you or your Personnel)
2. your, or your Personnel’s, breach of this Agreement, any law or third-party rights.
3. any information, documentation, specifications or directions given by you or your Personnel; and
4. any event or circumstance beyond our reasonable control.

8.2. Indemnity: Despite anything to the contrary, to the maximum extent permitted by law, you are liable for, and agree to make good, indemnify us and hold us harmless in respect of, any Liability that we may suffer, incur or otherwise become liable for, arising from or in connection with:

1. acts or omissions of you or your Personnel; or
2. any information, documentation, specifications or directions given by you or your Personnel.

8.3. Limitation of liability: Despite anything to the contrary, to the maximum extent permitted by law:

1. we will not be liable for any Consequential Loss; and
2. our maximum aggregate Liability in relation to the provision of the Goods and Services or this Agreement will be limited to us resupplying the Goods and Services to you or, in our sole discretion, to us repaying you the amount of the Price paid by you to us in respect of the provision of the relevant Goods and Services to which the Liability relates.

9. INTELLECTUAL PROPERTY

9.1. As between the Parties, all Intellectual Property Rights developed, adapted, modified or created by or on behalf of us or our Personnel in connection with this Agreement or the provision of the Goods and Services, will at all times vest, or remain vested, in us.

9.2. You grant us a non-exclusive, revocable, worldwide, non-sublicensable and non-transferable right and licence, for the duration of this Agreement, to use your and your Personnel’s Intellectual Property for the performance of our obligations under this Agreement.

9.3. You agree that we own all Intellectual Property Rights in all Intellectual Property owned, licensed or developed by or on behalf of us or our Personnel before the Start Date and/or developed by us or our Personnel independently of this Agreement and nothing in this Agreement constitutes a transfer or assignment of any of our Intellectual Property Rights unless expressly stated.

10. CONFIDENTIALITY

10.1. Subject to clause 10.2, you must (and must ensure that your Personnel do) keep confidential, and not use or permit any unauthorised use of, all Confidential Information.

10.2. Clause 10.1 does not apply where the disclosure is required by law or the disclosure is to a professional adviser in order to obtain advice in relation to matters arising in connection with this Agreement and provided that you ensure the adviser complies with the terms of clause 10.1

11. GENERAL

11.1. Disputes: A Party may not commence court proceedings relating to any dispute, controversy or claim arising from, or in connection with, this Agreement (including any question regarding its existence, validity or termination) (Dispute) without first meeting with a senior representative of the other Party to seek (in good faith) to resolve the Dispute. If the Parties cannot agree how to resolve the Dispute at that initial meeting, either Party may refer the matter to a mediator. If the Parties cannot agree on who the mediator should be, either Party may ask the law society of the State to appoint a mediator. The mediator will decide the time, place and rules for mediation. The Parties agree to attend the mediation in good faith, to seek to resolve the Dispute. The costs of the mediation will be shared equally between the Parties. Nothing in this clause will operate to prevent a Party from seeking urgent injunctive or equitable relief from a court of appropriate jurisdiction.

11.2. Governing law: This Agreement is governed by the laws of the State. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in the State and any courts entitled to hear appeals from those courts and waives any right to object to proceedings being brought in those courts.

11.3. GST: If and when applicable, GST payable on the Price will be set out in our invoice. You agree to pay the GST amount at the same time as you pay the Price.

11.4. Notices: Any notice given under this Agreement must be in writing addressed to the relevant address last notified by the recipient to the Parties. Any notice may be sent by standard post or email and will be deemed to have been served on the expiry of 48 hours in the case of post, or at the time of transmission in the case of transmission by email.

11.5. Severance: If any provision (or part of it) under this Agreement is held to be unenforceable or invalid in any jurisdiction, then it will be interpreted as narrowly as necessary to allow it to be enforceable or valid. If a provision (or part of it) under this Agreement cannot be interpreted as narrowly as necessary to allow it to be enforceable or valid, then the provision (or part of it) must be severed from this Agreement and the remaining provisions (and remaining part of the provision) of this Agreement is valid and enforceable.

11.6. Survival: Clauses 3, 5Error! Reference source not found., 6.3, 7.3, 8, 9, 10 and 11 will survive the termination or expiry of this Agreement.

12. INTERPRETATIONS & DEFINITIONS

12.1. Any reference to “Goods and Services” may mean “Goods and/or Services”, as the case may be.

12.2. In this Agreement, unless the context otherwise requires, capitalised terms have the meanings given to them in the Schedule, within these terms and conditions, and:

Confidential Information includes information which:

1. is disclosed to you in connection with this Agreement at any time.
2. is prepared or produced under or in connection with this Agreement at any time.
3. relates to our business, assets or affairs; or
4. relates to the subject matter of, the terms of and/or any transactions contemplated by this Agreement

whether or not such information or documentation is reduced to a tangible form or marked in writing as “confidential”, and howsoever you receive that information.

Consequential Loss includes any consequential, special or indirect loss, damage or expense including any real or anticipated loss of revenue, loss of profit, loss of use, loss of occupation, loss of benefit, loss of financial opportunity, or economic loss whether arising out of a breach of this Agreement, at law, under any statute, in equity, or in tort (including negligence).

Intellectual Property means any copyright, registered or unregistered design, patent or trademark rights, domain names, know-how, inventions, processes, trade secrets or Confidential Information; or circuit layouts, software, computer programs, databases or source codes, including any application, or right to apply, for registration of, and any improvements, enhancements or modifications of, the foregoing.

Intellectual Property Rights means for the duration of the rights in any part of the world, any industrial or intellectual property rights, whether registrable or not, including in respect of Intellectual Property.

Liability means any expense, cost, liability, loss, damage, claim, notice, entitlement, investigation, demand, proceeding or judgment (whether under statute, contract, equity, tort (including negligence), indemnity or otherwise), howsoever arising, whether direct or indirect and/or whether present, unascertained, future or contingent and whether involving a third party, a Party or otherwise.

Personnel means, in respect of a Party, any of its employees, consultants, suppliers, subcontractors or agents.

Schedule means the schedule to which this Agreement is attached