Terms and Conditions
for services and products provided by
Tradewise Group (ABN 60 614 289 093)
Contents
1. Definitions and interpretation
2. Engagement as Company
3. Provision of the Services
4. Pricing and invoicing
5. Payment
6. Project Completion
7. GST
8. Confidentiality
9. Non-disparagement
10. Intellectual Property
11. Liability, Indemnity and Remedies
12. Termination
13. Non-solicitation
14. Notices
15. General
Schedule 1 | Non-Solicitation Periods
Operative provisions
Definitions and interpretation
Definitions
The following definitions apply in these terms and conditions (‘Terms’) unless the context requires otherwise:
Agreement means the agreement constituted by the relevant Quote incorporating these Terms and any other terms incorporated in writing by agreement between the parties.
Approvals means all approvals, authorisations, permits, consents, determinations and licences which are issued, or required to be issued, by any Governmental Agency to permit the full and proper performance of the Consultant’s obligations under the Agreement.
Australian Standards means AS2419, AS1851, local council requirements, and Sydney Water Corporation requirements.
Authorised Third Party Disclosee means any Representative of a Disclosee to whom that Disclosee discloses Confidential Information in accordance with clause 7.
Background IP means any intellectual property rights, including but not limited to patents, copyrights, trademarks, trade secrets, know-how, and other proprietary rights, owned by either party prior to the commencement of this Agreement.
Business Day means a day (other than a Saturday, Sunday or public holiday) when banks in Sydney, New South Wales are open for business.
Charges means Fees and Expenses.
Claim means any actual, contingent, present or future claim, complaint, demand, proceeding, suit, litigation, action, cause of action or other legal recourse for any Loss, restitution, equitable compensation, account, injunctive relief, specific performance or any other remedy of whatever nature and however arising, whether in contract, tort (including but not limited to negligence), under statute or otherwise.
Client means the party that will receive the Services as named in the Quote.
Confidential Information means all information relating to a party, any customer, clients, suppliers, distributors or joint venture partners, of the party and/or any of the business or financial affairs of any of them, including:
any information that is specifically designated by any of them as confidential;
any information which, by its nature, may reasonably be regarded as confidential;
any information relating to any:
agreements, arrangements or terms of trade with any existing or prospective customers, clients, suppliers, distributors or joint venture partners or other contractual counterparties;
customers, clients, suppliers, distributors, joint venture partners, employees, technologies, products, services, proposals, market opportunities, business or product development plans, pricing, financial position or performance, capabilities, capacities, operations or processes; or
Intellectual Property Rights,of any of them; and any note, calculation, conclusion, summary or other material derived or produced partly or wholly from any such information; negotiations in relation to, and the terms of, this agreement, whether that information is visual, oral, documentary, electronic, machine-readable tangible, intangible or any other form, relating to the Company or any Related Entity of the Company including but not limited to any specifications, formulae, know how, concepts, inventions, ideas, software, designs, copyright, trade secrets or any information relating to any business, products, markets, operations, processes, techniques, technology, forecasts, strategies or any other matter.
Copyright Act means the Copyright Act 1968 (Cth).
Corporations Act means the Corporations Act 2001 (Cth).
Deposit has the meaning given in clause 4.1.
Disclosee means, in respect of any particular Confidential Information, any party that has received that Confidential Information (whether directly or indirectly) from another party.
Discloser means, in respect of any particular Confidential Information, any party that has disclosed or discloses that Confidential Information (whether directly or indirectly) to another party.
Engagement has the meaning given in clause 3.1, being each individual engagement for the Company to provide specific Services to the Client pursuant to a Quote.
Emergency means any malfunction, breakage or anything else that affects the proper functioning of the Services supplied or maintained by the Company which poses an immediate threat to the safety of personnel, property or the environment, or that could lead to significant operational disruption or financial loss.
Emergency Services means the 24/7 rapid response service provided by the company for to respond to Emergencies.
Equipment means the equipment used or supplied by the Company or the Company’s representative for the purposes of providing the Services.
Event of Default means any of the following on the part of a party:
committing any material or persistent breach of this agreement;
repudiating or, or, in the reasonable opinion of the Company, evincing an intention to repudiate, this agreement;
if the Client is a company, undergoing a Change of Control without the prior written consent of the Company;
misleading the Company in any material way; and/or
an Insolvency Event occurring in respect of the Client.
Expenses mean the expenses of the Company for which the Company is entitled to be reimbursed by the Client pursuant to clause 4.6.
Fees has the meaning given in clause 4.1.
Fixed Price means, in respect of a particular Engagement, the price (exclusive of GST) specified in the relevant Quote for all of the Services.
Force Majeure means any act, event or cause (other than lack of funds) which is beyond the reasonable control of the affected party, including:
an act of God, war, sabotage, terrorism, riot, civil disorder, revolution, national or state emergency, martial law, fire, lightning, flood, cyclone, earthquake, landslide, storm or other adverse weather conditions, explosion, power shortage, strike or other labour difficulty (whether or not involving employees of the affected party), epidemic or quarantine; and
an action or inaction of any Governmental Agency (including any Court of competent jurisdiction), such as expropriation, restraint, prohibition, intervention, requisition, requirement, direction or embargo by legislation, decree or other legally enforceable order.
Governmental Agency means any government or governmental, semi-governmental, administrative, fiscal or judicial body, department, commission, authority, tribunal, agency or entity whether foreign, federal, state, territorial or local.
GST has the same meaning given to that expression in the GST Law.
GST Act means A New Tax System (Goods and Services Tax) Act 1999 (Cth), as in force from time to time.
GST Law has the same meaning given to that expression in the GST Act.
Hourly Rate means the hourly rate set out in the relevant Quote, if applicable.
Impediments means circumstances beyond the reasonable control of a party that directly and materially delay the Company’s performance of its obligations under this Agreement, including but not limited to Force Majeure, transportation or communication failures, or excavation complications (such as undisclosed rock or utility lines).
Insolvency Event means, in respect of a party any of the following events or any analogous event:
where the party is an individual, that party commits an act of bankruptcy or is declared bankrupt or insolvent or that party’s estate otherwise becomes liable to be dealt with under any law relating to bankruptcy or insolvency;
where the party is a company, a resolution is passed or court order made for the winding up of that party or an administrator is appointed to that party pursuant to any relevant law;
a receiver or manager or receiver and manager is appointed to the assets or undertaking of the party or any part thereof; or
the party is otherwise unable to pay its debts as and when they fall due.
In-Scope Work means work that has been expressely and specifically designated as being within the scope of the Services.
Input Tax Credit has the meaning given in the GST Law.
Intellectual Property Rights means patents, rights to inventions, copyright and related rights, moral rights, trademarks and service marks, trade names and domain names, rights in get-up, rights to goodwill or to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights in confidential information (including know-how, trade secrets and marketing secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications (or rights to apply) for, and renewals or extensions of, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Losses means any loss, damage, debt, cost, charge, expense, fine, outgoing, penalty, diminution in value, deficiency or other liability, whether arising in contract, negligence, tort, equity, statute or otherwise; and that a party pays, suffers or incurs or is liable for, including all:
liabilities on account of Tax;
interest and other amounts payable to third parties;
legal and other professional fees and expenses on a full indemnity basis and other costs incurred in connection with investigating, defending or settling any Claim; and
all amounts paid in settlement of any Claim.
Material means any data, plans, instructions, documents, descriptions, reports, advice, accounts, drawings, photographs or any other material.
Moral Rights has the same meaning as that term has in Part IX of the Copyright Act.
Non-Solicitation Period means each period of time specified in Schedule 2.
Notice means any notice or other communication by one party to the other party under the terms of this agreement including but not limited to any request, demand, consent, waiver or approval.
Out-of-Scope Work means any work that is not In-Scope Work, including the work specifically described as being out of scope in the Quote (if any).
Personal Information has the meaning given in the Privacy Act.
Practical Completion means the stage in the execution of the Services when:
The Services are substantially complete except for minor defects or omissions that do not prevent the Services from being reasonably capable of being used for their intended purpose; and
The Contractor has provided all necessary documentation, such as as-built drawings, operation and maintenance manuals, and warranty certificates.
Privacy Act means the Privacy Act 1998 (Cth).
Quote means, in respect of the Agreement, the document headed “Quote” or similar setting out the scope of the Services as provided by the Company to the Client and accepted by the parties in accordance with the Agreement.
Related Entity has the meaning set out in the Corporations Act 2001 (Cth).
Relevant IP means all Intellectual Property Rights that the Company makes, develops or conceives (whether alone or in conjunction with someone else, and whether during or outside normal working hours) in the course of, or arising out of, the provision of the Services and/or Company’s engagement with the Client, including any Intellectual Property Rights so made, developed or conceived:
using the premises, resources or facilities of the Client or any of its customers, clients or suppliers;
in the course of, as a consequence of, or in relation to, the provision of the Services by the Company and/or the performance (whether proper or improper) of the Company’s duties and responsibilities to the Client under this agreement or otherwise;
as a direct or indirect result of any person’s access to any Confidential Information or Intellectual Property Rights of the Client or any of its customers, clients or suppliers; or
in respect of any of the products or services of the Client or any of its customers, clients or suppliers, or any alterations, additions or methods of making, using, marketing, selling or providing such products or services.
Representatives means, in respect of a person, the employees, officers, consultants, agents and professional advisers of that person.
Services means the services and/or products provided by the Company to the Client under the Agreement in respect of each Engagement, as set out in the relevant Quote.
Stage means each single stage of the Services, as described in the Quote.
Stamp Duty means any stamp, transaction or registration duty or similar charge imposed by any Governmental Agency and includes any interest, fine, penalty, charge or other amount in respect of the above, but excludes any GST.
Tax Acts means the Income Tax Assessment Act 1936 (Cth) and the Income Tax Assessment Act 1997 (Cth).
Tax or Taxation means:
any tax, levy, impost, deduction, charge, rate, compulsory loan, withholding or duty by whatever name called, levied, imposed or assessed under the Tax Acts or any other statute, ordinance or law by any Governmental Agency (including profits tax, property tax, interest tax, income tax, tax related to capital gains, tax related to the franking of dividends, bank account debits tax, fringe benefits tax, sales tax, payroll tax, superannuation guarantee charge, group or Pay as You Go withholding tax and land tax);
unless the context otherwise requires, Stamp Duty and GST; and
any interest, penalty, charge, fine or fee or other amount of any kind assessed, charged or imposed on or in respect of the above.
Works means all programs and programming and literary, dramatic, musical and artistic works within the meaning of the Copyright Act.
Interpretation
The following rules of interpretation apply in these Terms unless the context requires otherwise:
headings in these Terms are for convenience only and do not affect its interpretation or construction;
no rule of construction applies to the disadvantage of a party because these Terms are prepared by (or on behalf of) that party;
where any word or phrase is defined, any other part of speech or other grammatical form of that word or phrase has a cognate meaning;
a reference to a document (including these Terms or the Agreement) is a reference to that document (including any schedules and annexures) as amended, consolidated, supplemented, novated or replaced;
references to recitals, clauses, subclauses, paragraphs, annexures or schedules are references to recitals, clauses, subclauses, paragraphs, annexures and schedules of or to these Terms or the Agreement;
in each schedule to these Terms, a reference to a paragraph is a reference to a paragraph in that schedule;
a reference to any statute, proclamation, rule, code, regulation or ordinance includes any amendment, consolidation, modification, re-enactment or reprint of it or any statute, proclamation, rule, code, regulation or ordinance replacing it;
an expression importing a natural person includes any individual, corporation or other body corporate, partnership, trust or association and any Governmental Agency and that person’s personal representatives, successors, permitted assigns, substitutes, executors and administrators;
a reference to writing includes any communication sent by post, facsimile or email;
a reference to time refers to time in Sydney, New South Wales and time is of the essence;
all monetary amounts are in Australian currency;
a reference to a “liability” includes a present, prospective, future or contingent liability;
the word “month” means calendar month and the word “year” means 12 calendar months;
the meaning of general words is not limited by specific examples introduced by “include”, “includes”, “including”, “for example”, “in particular”, “such as” or similar expressions;
a reference to a “party” is a reference to a party to the Agreement and a reference to a “third party” is a reference to a person that is not a party to the Agreement;
a reference to any thing is a reference to the whole and each part of it;
a reference to a group of persons is a reference to all of them collectively and to each of them individually;
words in the singular include the plural and vice versa; and
a reference to one gender includes a reference to the other genders.
Engagement as Company
Engagement
The Client engages the Company to provide the Services to the Client, and the Company hereby accepts that engagement and agrees to provide the Services to the Client, in accordance with the terms of the Agreement.
Non exclusivity
The Principal may at any time engage any third party, or use any member of the Principal’s staff, to provide goods and/or services similar or identical to the Services.
Subject to the Company’s obligations under the Agreement and providing there is no conflict with any competitor of the Client, the Company may provide services similar to the Services to any other person during the term.
Commencement and duration
The Company’s engagement with the Client will commence on upon execution of the Agreement in writing, or upon the doing of any act by the Client consistent with acceptance of the Agreement.
Nature of relationship
The Company is an independent contractor of the Client and nothing in the Agreement constitutes a relationship of employer and employee, principal and agent, partnership or joint venture between the parties. The Company does not have, and will not hold themselves out as having, any authority to bind the Client in any matter including but not limited to any contracts, commitments, expenses, liabilities or obligations of any nature.
Provision of the Services
Quote
In respect of each individual engagement for the Company to provide Services to the Client (each an Engagement), the parties must first agree on a Quote. The Company’s obligation to provide the Services that are the subject of each Engagement does not arise unless and until the Client has notified the Company of the Client’s acceptance of the relevant Quote, and thereby the Agreement including these Terms.
Impediments
Where the Company becomes aware of an Impediment which is affecting or will affect the delivery of the Services, the Company will notify the Client within 5 business days. The Company will not be liable for any loss caused by the delay in providing the Services as a result of the Impediment.
Emergency Services
Should the client experience an Emergency, they may contact the Company and request Emergency Services.
Where the Client requests Emergency Services from the Company, the Company will attend the site to assess whether the circumstances are considered an Emergency and whether Emergency Services are required.
Where Emergency Services are required, the Company will arrange for these services to be initiated within 2 hours.
Pricing and invoicing
Pricing
Subject to clause 3.1, in respect of each Engagement, the parties have agreed that the total price for the relevant Services (exclusive of GST and Expenses, and including a Deposit where relevant) (the Fees) will be, if as designated in the relevant Quote:
(Fixed Price) where a Fixed Price applies:
For projects under $50,000:
If the Services consist of one Stage: completion of that Stage; or
If the Services consist of two or more Stages: completion of each stage to the reasonable satisfaction of the client; and
20% of the Fixed Price paid up front as a deposit;
For projects $50,000 and above:
Monthly progress claims by the 15th of each month, or if the 15th is not a Business Day, the first Business Day thereafter, with progress claims to include:
Work completed since the last progress claim was made;
Materials delivered or ordered since the last progress claim was made;
An updated progress report with estimated timeframes for Practical Completion,
With payment to be made by the Client in accordance with clause 5.
20% of the Fixed Price paid up front as a deposit;
Where Services are terminated or suspended in accordance with this Agreement or otherwise;
The Company has the immediate right to claim for:
All work completed to date;
Materials ordered;
Demobilisation costs; and
Loss of profit on uncompleted works (up to 10% of the remaining contract value),
(Hourly Rate) the Hourly Rate applies – calculated on the basis of the time spent by the Company in exclusively providing those Services on an hourly rate basis at the Hourly Rate in accordance with clause 4.3 and payable in arrears (subject to clause 4.1(c)) upon completion of:
If the Services consist of one Stage; that Stage; or
If the Services consist of two or more Stages: each Stage to the reasonable satisfaction of the Client;
and the Company may invoice the Client by way of a single invoice or multiple invoices for all relevant Charges following completion of all relevant work to the reasonable satisfaction of the Client, provided that if, as designated in the relevant Quote, a deposit is specified (the Deposit):
the Deposit will be payable upon commencement of the Services. The Company will invoice the Client for the Deposit at any time, but not less than 10 Business Days, prior to commencement of the Services and the Client must pay the Deposit prior to the commencement of the Services; and
the balance of all relevant Charges will be payable in arrears upon completion of the Services to the reasonable satisfaction of the Client. The Company will invoice the Client for that balance following completion of all relevant work to the reasonable satisfaction of the Client; and
Emergency Services will be charged as per the standard Tradewise price list applicable at the time of service and any additional costs incurred for any other expenses incurred under clause 4.7, unless otherwise specified in the Quote. The cost of each isolated delivery of Emergency Services will be added to the Fees and included in the next-in-time invoice.
If the Client requests for the Company to complete Out-of-Scope Works, that Work will be quoted under and subject to a separate Agreement.
Deposit (if any) non-refundable
In the absence of any material breach by the Company constituting a repudiation or deemed repudiation of the Agreement, the Deposit (if applicable) is non-refundable.
Hourly Rates
Hourly Rates shall be proportionately charged for work involving periods of less than one hour and structured in 15-minute units, with 4 units per hour – eg, the time charged for an attendance of up to 15 minutes will be 1 unit and the time charged for an attendance between 15 and 30 minutes will be 2 units.
The Company must keep and maintain accurate records of the number of hours of Services in respect of which the Hourly Rate applies and provide the Client with a copy of such records upon reasonable notice as may be requested by the Client from time to time.
The Hourly Rate may only be changed by way of an amendment to the Agreement pursuant to clause 14.8.
Reimbursement of Expenses
The Client will pay all reasonable expenses properly and necessarily incurred by the Company in the course of providing the Services, provided that:
the Company:
obtains the Client’s written consent before incurring the expenses;
provides the Client with acceptable documentation for the expenses incurred; and
complies with any applicable expenses policy of the Client in force from time to time, provided that a copy of the policy has been provided to the Company by the Client prior to the relevant expense being incurred.
Changes in the price of Materials
The Company reserves the right to adjust the Fees to reflect any increases in the market price of materials or products greater than 10% which impact the cost of providing the Services. Such adjustments will be made in good faith and will be based on verifiable market data. The Company will provide the Client with 30 days’ notice of any such adjustments.
Payment
Timing of payments
The Deposit (if any) is payable in accordance with the provisions of clause 4. The Client must pay to the Company all other Charges properly invoiced pursuant to clause 4 in full on or before the date that is 10 Business Days after the Client’s receipt of the relevant invoice.
Method of payment
All amounts to be paid by a party to another party under or in connection with the Agreement must be paid in cash or by way of bank cheque or electronic funds transfer into the account nominated by the other party.
No set-off or deduction
Unless otherwise agreed in writing and subject to clause 5.4, all amounts payable under or in connection with the Agreement must be paid without set-off, counterclaim, withholding, deduction or claim to a lien whatsoever, whether or not any such set-off, counterclaim, withholding, deduction or lien arises under the Agreement.
If a party is required by law to make a deduction or withholding in respect of any sum payable under or in connection with the Agreement to another party, it must, at the same time as the sum that is the subject of the deduction or withholding is payable, make a payment to the other party of such additional amount as is required to ensure that the net amount received by the other party will equal the full amount that would have been received by it had no such deduction or withholding been required to be made.
Late Payments
If payment is not made by the Client in accordance with clause 5.1, the Company may suspend provision of the Services and any other action required by the Company under this Agreement until such a time as payment is received from the Client by the Company.
The Company will not be liable for any Loss incurred by the Client as a result of the suspension of works under clause 5.5, whether direct, indirect, consequential or otherwise.
If the Client fails to make any payment due under this Agreement by the due date and in accordance with clause 5.1, the Company shall be entitled to charge interest on the overdue amount at a rate of 10% per annum, accruing daily from the due date until payment is made in full.
Suspension of Services
The Company may suspend the Services immediately by written notice if:
Any payment to be made by the Client to the Company under this Agreement is overdue by more than 10 Business Days;
The Client breaches any material obligation under this Agreement;
Suitable site access is not provided by the Client to the Company;
In the reasonable opinion of the Company, the Site is unsafe for delivery of the Services;
During suspension in accordance with clause 5.8:
All timeframes required for the delivery of the Services are automatically extended by the number of Business Days the suspension is in effect;
The Client remains liable for all costs incurred by the Company in connection with the Agreement, including:
Demobilisation and remobilisation costs;
Standing time for labour and equipment;
Storage costs; and
Project management costs;
Work will resume within 5 Business Days after:
All outstanding payments are made by the Client;
Any relevant breach is remedied; and
The Client provides the Company with written confirmation of resumed access to the Site.
Handover upon Suspension
Upon suspension in accordance with clause 5.5:
The Company will:
Secure all incomplete works;
Remove equipment and materials from the Site (at the Client’s cost);
Provide a current status report of the Services; and
Deliver all completed documentation related to the Agreement and ordinarily deliverable to the Client under clause 6.3.
The Client will:
Pay all outstanding amounts under this Agreement;
Provide access to the Site to the Company for the removal of all equipment; and
Accept handover of completed works.
If suspension under clause 5.5 continues for more than 20 Business Days, the Company may terminate the Agreement and claims costs as per clause 4.1(a)(iii).
Project Completion
Handover of Services
The Contractor shall notify the Client in writing of the date on which the Services are substantially complete and ready for Practical Completion.
Practical Completion shall be deemed to have occurred on the date the Client issues a Certificate of Practical Completion, which shall not be unreasonably withheld.
Handover Documentation
Upon Practical Completion, the Contractor shall provide the Client with the following documentation, as applicable:
As-built drawings;
Operation and maintenance manuals;
Warranty certificates;
Compliance certificates;
Any other relevant documentation.
Within 10 Business Days of Practical Completion, the Contractor and the Client shall meet to review the Services and address any outstanding issues.
The Client shall have the right to inspect the Services prior to the handover meeting.
The Contractor shall be responsible for rectifying any defects in the Services that become apparent within 6 months of Practical Completion.
The Client shall notify the Contractor in writing of any defects within 2 Business Days of their discovery.
GST
Definitions regarding GST
In this clause 6:
expressions that are not defined, but which have a defined meaning in the GST Law, have the same meaning as in the GST Law;
any part of a supply that is treated as a separate supply for GST purposes (including attributing GST payable to tax periods) will be treated as a separate supply for the purposes of this clause 6; and
any consideration that is specified to be inclusive of GST must not be taken into account in calculating the GST payable in relation to a supply for the purpose of this clause 6.
Consideration is exclusive of GST
Unless expressly stated otherwise, any sum payable, or amount used in the calculation of a sum payable, under the Agreement has been determined without regard to GST and must be increased on account of any GST payable under this clause 6.
Receiving Party to pay additional amount
If GST is imposed on any supply made under or in accordance with the Agreement, the recipient of the supply (Receiving Party) must pay to the supplier (Providing Party) an additional amount equal to the GST payable on the supply, subject to the Receiving Party receiving a valid tax invoice, or a document that the Commissioner will treat as a tax invoice, in respect of the supply at or before the time of payment. Payment of the additional amount will be made at the same time and in the same manner as payment for the supply is required to be made in accordance with the Agreement.
Fines, penalties and interest
The amount recoverable on account of GST under this clause 6 by the Providing Party will include any fines, penalties, interest and other charges incurred as a consequence of any late payment or other default by the Receiving Party under this clause 6.
Reimbursement
If any party is required to pay, reimburse or indemnify another party for the whole or any part of any cost, expense, loss, liability or other amount that the other party has incurred or will incur in connection with the Agreement, the amount must be reduced by the amount for which the other party can claim an Input Tax Credit, partial Input Tax Credit or other similar offset.
Adjustment events
If, at any time, an adjustment event arises in respect of any supply made by a party under the Agreement, a corresponding adjustment must be made between the parties in respect of any amount paid to the Providing Party by the Receiving Party pursuant to clause 6.3 and payments to give effect to the adjustment must be made and the Providing Party must issue an adjustment note.
Confidentiality
Subject to clauses 7.3 and 7.4, a Disclosee must:
keep all Confidential Information confidential;
not use or exploit any Confidential Information in any way except in the proper performance of the Services in accordance with the Agreement;
not disclose or make available any Confidential Information in whole or in part to any third party;
not copy, reduce to writing or otherwise record any Confidential Information except in the proper performance of the Services in accordance with this agreement (and any such copies, reductions to writing and records will be the property of the Discloser); and
ensure that any and all Authorised Third Party Disclosees:
comply with the obligations in this agreement as if each of them was a party to the Agreement in the place of the Disclosee; and
do not do, or omit to do, anything which, if done or omitted to be done by the Disclosee, would constitute a breach of the Agreement by the Disclosee.
The Disclosee shall be responsible for, and liable to the Discloser in respect of, the actions or omissions of any and all of its Authorised Third Party Disclosees in relation to the Confidential Information as if they were the actions or omissions of the Disclosee.
Exceptions
The Disclosee may disclose Confidential Information to those of its Representatives who have an actual need to know the Confidential Information but only in the proper provision of the Services and performance of its duties under the Agreement and provided that it informs such Representatives of the confidential nature of the Confidential Information before such disclosure.
Subject to clause 7.5, the obligations in clause 7.1 will not apply to any Confidential Information which (as shown by appropriate documentation and other evidence in the relevant Disclosee’s possession):
was already known to the Disclosee on a non-confidential basis prior to the time of its first disclosure by the Discloser to the Disclosee, unless it came to be so known as a direct or indirect result of having been:
unlawfully obtained by the Disclosee, whether from a third party or otherwise; or
received by the Disclosee from a third party that owed a confidentiality obligation to the Discloser in respect of that information at the time of such receipt, in circumstances in which the Disclosee knew, or ought reasonably to have known after due enquiry, that the third party owed that confidentiality obligation to the Discloser;
is or becomes generally available to the public, unless it became so generally available as a direct or indirect result of having been disclosed by any person:
in circumstances that constitute a breach of the Agreement by the Disclosee (for the avoidance of doubt, including any breach by the Disclosee of its obligations under clause 7.1(e) to ensure that its Authorised Third Party Disclosees comply with the obligations in the Agreement as if they were parties to the Agreement in the place of the Disclosee); or
that owed a confidentiality obligation to the Discloser in respect of that information at the time of such disclosure, in circumstances in which the Disclosee knew, or ought reasonably to have known after due enquiry, that the person owed that confidentiality obligation to the Discloser;
is, after the time of its first disclosure by the Discloser to the Disclosee, lawfully received by the Disclosee from a third party and the Disclosee reasonably believed, after due enquiry, that the information was not so received as a direct or indirect result of a breach by any person of a confidentiality obligation owed to the Discloser;
is required by law or court order to be disclosed, provided that the Disclosee must:
promptly notify the Discloser in writing in advance of any such disclosure, if reasonably practicable; and
reasonably assist the Discloser in obtaining confidential treatment for, or avoiding or minimising such disclosure of, the relevant Confidential Information to the extent reasonably requested by the Discloser;
is independently developed by the Disclosee without any direct or indirect use of, reference to, or reliance on any Confidential Information; or
is authorised for release or use by the written pre-approval of the Discloser but only to the extent of such written pre-approval.
The exceptions in clause 7.4 shall not apply to any specific Confidential Information merely because it is included in more generally non-confidential information, nor to any specific combination of Confidential Information merely because individual elements, but not the combination, are included in non-confidential information.
Non-disparagement
Subject to clause 8.2, on and from the date of the Agreement, each party must not:
make, express, transmit, speak, write, verbalise or otherwise communicate in any way (directly or indirectly, in any capacity or manner) any remark, comment, message, information, declaration, communication or other statement of any kind (whether verbal, in writing, electronically transferred or otherwise) that might reasonably be construed to be critical of, or derogatory or negative towards, any other party or any Representative of any other party; or
cause, further, assist, solicit, encourage or knowingly permit any other person to do so, or support or participate in any other person doing so,
and must take all reasonable steps to prevent its Representatives from doing so.
Clause 8.1 shall not prohibit any party from making any statement or disclosure as required by law or court order, provided that such party must:
promptly notify the other party in writing in advance of any such statement or disclosure, if reasonably practicable; and
reasonably assist the other party in obtaining confidential treatment for, or avoiding or minimising the dissemination of, such statement or disclosure to the extent reasonably requested by any party.
Intellectual Property
The parties agree that all Relevant IP will be owned by, and vest in, the Client.
Assignment
The Company hereby assigns, transfers and conveys to the Client all current and future right, title and interest in all Relevant IP and acknowledges that all future Relevant IP will vest in the Client on and from creation.
Background IP
Each party retains ownership of is Background IP and grants the other party a royalty-free, perpetual license to use its Background IP to the extent necessary to receive the benefit of this Agreement.
Relevant IP
The Client grants the Company a perpetual, irrevocable, worldwide, royalty-free license to:
Use the Relevant IP for internal business purposes;
Incorporate the Relevant IP into its standard methodologies and know-how; and
Use non-confidential aspects of the Relevant IP in marketing materials.
Generic Knowledge
Nothing in this Agreement prevents the Company from:
Using skills, knowledge and experienced gained during the Services for completing actions falling outside the scope of this Agreement;
Developing similar solutions as those provided under this Agreement t other clients; or
Using general industry knowledge and techniques learned in providing the Services for the benefit of other clients.
Company’s duty to assist the Client
The Company must do anything necessary, including executing any documents, for the purpose of effecting, perfecting and/or protecting the Client’s title to any Relevant IP, in Australia or in such other countries as the Client may require at its discretion.
Permitted use
The Company may not use or reproduce any Relevant IP or any other Intellectual Property Rights of the Client or any of the Client’s customers, clients or suppliers without the Client’s prior written approval, except in the proper provision of the Services and performance of its duties under the Agreement.
Disclosure of Relevant IP
The Company must immediately disclose in writing to the Client any Intellectual Property Rights that the Company makes, develops or conceives that might reasonably be regarded as Relevant IP.
Moral rights
The Company consents to the doing of any acts, or making of any omissions, by the Client or any of the Client’s employees, officers, contractors, agents, licensees or assigns that infringes its Moral Rights in any Works that constitute Relevant IP, including:
not naming the Company as the author of a Work; or
amending or modifying (whether by changing, adding to or deleting/removing) any part of a Work but only if the Company is not named as the author of the amended or modified Work,
whether those acts or omissions occur before, on or after the date of the Agreement. The Company acknowledges that its consent pursuant to this clause 9.6 is genuinely given without duress of any kind and that it has been given the opportunity to seek legal advice on the effect of giving that consent.
Non-infringement
In providing the Services, the Company must not infringe any rights in any Intellectual Property of any third parties and must not, without proper authorisation, make any use of, or bring into the Client’s computer systems or onto the Client’s premises, any Intellectual Property of any third party.
Liability, Indemnity and Remedies
Indemnity
Each party (Indemnifier) irrevocably indemnifies and covenants to hold the other party (Indemnified Party) harmless from and against all Losses suffered by the Indemnified Party which arise in connection with any breach of the Agreement by the Indemnifier and/or any negligent or other tortious conduct of the Indemnifier in the provision of the Services, except to the extent that those Losses were caused by or contributed to by the Indemnified Party.
For the avoidance of doubt, the indemnity under the Agreement does not include and will not be extended by:
any third party claims made on a party; or
any consequential or indirect costs.
Indemnities continuing
Each indemnity contained in the Agreement is an additional, separate, independent and continuing obligation that, subject to clause 10.4 survives the termination of this agreement for a period of 2 years.
If a claim is made within the period stipulated in clause 10.3, then the relevant indemnity remains in full force and effect until all money owing, contingently or otherwise, under the indemnity has been paid in full.
Limitation of liability
(Disclaimer of warranties) To the maximum extent permitted by law and except as otherwise set out in the Agreement, the Company and its Representatives expressly disclaim all conditions, representations and warranties (whether express or implied, statutory or otherwise) in relation to the Services and any Equipment provided as part of the Services, including any implied warranty of merchantability and fitness for a particular purpose.
(Limitation of liability) Where the conditions, representations and warranties referred to in clause 10.5 cannot be disclaimed or excluded by law, then the aggregate liability of the Company and its Representatives in respect of any Claim for Losses that the Client and/or any of its Representatives may bring against the Company in respect of the Services or is limited, at the Company’s election, to one or a combination of the following remedies:
re-supply of the Services;
payment of the costs of re-supply of the Services by a third party; or
the refund of any amounts paid (either in full or part) by the Client to the Company under the Agreement in respect of the Services.
Insurance
The Company must have and maintain Public and Products Liability Insurance and Professional Indemnity Insurance (in each case $5 million for each occurrence) throughout the term of the Agreement, and the Company must ensure that any sub-contractor engaged by it is insured to a level commensurate with the insurance obligations of the Company under the Agreement.
Title and Risk
Title and risk to any goods provided as part of the Services will pass to the Client when they are delivered in accordance with the Quote.
Third Party Warranties
Where the Company uses Equipment or materials from third-party suppliers that come with manufacturer or supplier warranties, the Company passes these warranties through to the Client but makes no additional representations or warranties beyond those provided by the original manufacturer or supplier. The Company’s liability for Equipment or materials shall be limited to the extent of the original supplier’s warranty.
Notwithstanding anything else in this Agreement:
To the maximum extent permitted by law, in no event shall the Company be liable to the Client or any third party for any consequential, indirect, incidental or special damages or loss arising out of or relating to any breach of this Agreement;
The Company’s maximum aggregate liability arising out of or related to this Agreement shall not exclude the total amount paid to the Company by the Client in the twelve (12) month period preceding the event giving rise to the claim, or the insurance coverage available to the Company specifically for the claim, whichever is greater;
Where the Company uses or installs Equipment or materials manufactured or supplied by third parties, the Company’s liability for damage caused by failure or defect in such Equipment or materials shall not exceed the liability accepted by the relevant manufacturer or supplier of such Equipment or materials.
Force majeure
To the maximum extent permitted by law, the Company and its Representatives expressly exclude liability for any damage and/or delay in the performance of any obligation of the Company under the Agreement where such damage or delay is caused by circumstances beyond the reasonable control of the Company. The Client acknowledges and agrees that the Company holds the benefit of this clause 10.7 for itself and as agent and trustee for and on behalf of each of its Representatives.
Remedies for breach
Each party acknowledges and agrees that, in the event of any breach by the other party of the provisions of clause 7 (Confidentiality), clause 8 (Non-disparagement), clause 9 (Intellectual Property) or clause 12 (Non-solicitation), damages may not be an adequate remedy and the first-mentioned party may, in addition to any other remedies, obtain an injunction restraining any further violation by the other party and other equitable relief, together with recovery of costs.
Termination
Termination for breach
Each party may terminate the Agreement immediately by notice to the other party if an Event of Default occurs in respect of the other party.
If a party commits any material or persistent breach of the Agreement (the Defaulting Party), the other party may (but is not obliged to) provide the Defaulting Party with a notice of breach in writing. If the Defaulting Party fails to remedy the breach within 20 Business Days, or such other period as agreed, after the date of its receipt of such notice, the other party may terminate the Agreement with immediate effect upon providing the Defaulting Party with a further notice of termination in writing.
Termination with notice
The Company may, at any time prior to the commencement of delivery of the Services, terminate or vary the Agreement.
If the Company elects to vary the Quote in accordance with clause 11.3, the Client may choose to terminate the Agreement within 48 hours of receiving the amended Quote or up until the Company begins delivery of the Services under the Agreement, whichever occurs first.
The Company may, without limitation to its rights under clause 11.2, terminate the Agreement at any time by giving at least 20 Business Days’ notice to the Client. The Client may waive all or part of such notice period.
The Client may, without limitation to its rights under clause 11.2, terminate this agreement at any time by giving at least 20 Business Days’ notice to the Company.
Effect of termination
In the event of any termination of the Agreement in any circumstances and for any reason whatsoever:
the Client will remain liable to pay all Charges accrued up to and including the date of termination, whether or not invoiced prior to the date of termination (for the avoidance of doubt, in the event of any termination of the Agreement by the Client, including Charges incurred by the Company for the purchase of materials for those Services prior to such termination); and
the Company will send to the Client a final invoice for the balance of any unbilled Charges accrued up to and including the date of termination and clause 5 will apply in respect thereof.
During notice period
In the event that the Company’s engagement under the Agreement is terminated upon notice by either party the Client may, at its absolute discretion, require the Company to refrain from providing the Services during the relevant notice period.
Partially completed deliverables
Upon the cessation of the Company’s engagement under the Agreement, subject to payment of all outstanding Charges by the Client in accordance with the terms of the Agreement, the Company will deliver to the Client any and all partially completed deliverables that are included within the scope of the Services.
Legislation
If any provision of the Agreement is otherwise unenforceable by virtue of the operation of the Treasury Laws Amendment (2017 Enterprise Incentives No. 2) Act 2017 (Cth), upon the occurrence of an Insolvency Event in respect of a particular party, notwithstanding any other provision of the Agreement, to the maximum extent permitted by law:
time is of the essence in respect of all obligations of that party under the Agreement (whether falling due for performance before, upon or after the occurrence of that Insolvency Event); and
any breach of the Agreement by that party (whether occurring before, upon or after the occurrence of that Insolvency Event), however minor, will (alone or, severally, in combination with the occurrence of that Insolvency Event) be deemed to be a material breach of the Agreement,
and, if any such material breach has occurred or occurs, the parties acknowledge and agree that such provision will instead be enforceable by virtue of the occurrence of that material breach.
Accrued rights
Termination of the Agreement will not affect any rights or liabilities that the parties have accrued under it prior to such termination.
Survival
The obligations of the parties under clause 7 (Confidentiality), clause 8 (Non-disparagement), clause 9 (Intellectual Property), clause 10 (Liability and remedies), clause 12 (Non-solicitation) and this clause 11 will survive the termination of this agreement.
Non-solicitation
During the Company’s engagement with the Client under the Agreement and for each Non-Solicitation Period thereafter, the Client must not, without the Company’s prior written consent (which the Company may withhold or delay in its absolute discretion), directly or indirectly:
(non-solicitation suppliers) interfere with or disrupt, or attempt to interfere with or disrupt, any relationship, whether contractual or otherwise, between the Company and any of the Company’s suppliers, distributors or joint venture partners, or identified prospective suppliers, distributors or joint venture partners; or
(non-solicitation of staff) induce, encourage or solicit any of the Company’s officers, employees, contractors or agents to cease their employment, engagement or agency with the Company.
The Client acknowledges and agrees that:
the restraints in clause 12.1 constitute several separate covenants and restraints consisting of each of clauses 12.1(a) and (b) combined with each separate Non-Solicitation Period severally;
each of those separate covenants and restraints is a fair and reasonable restraint of trade that goes no further than is reasonably necessary to protect the Company’s goodwill and business;
the Client has received substantial and valuable consideration for each of those separate covenants and restraints, including its receipt of the Services; and
breach by the Client of any of those separate covenants and restraints would be unfair and calculated to damage the Company’s goodwill and business and would lead to substantial loss to the Company.
The parties intend the covenants and restraints under clauses 12.1 to operate to the maximum extent. If any of those separate covenants and restraints would, in the absence of this clause 12.3, be void as unreasonable for the protection of the interests of the Company but would not be so void if any part of the wording in this clause 12 or Schedule 2 was deleted or amended, the separate covenants and restraints will apply with the minimum modifications necessary to make them effective.
Notices
A Notice given to a party under the Agreement must be:
in writing in English;
sent to the address, fax number or email address of the relevant party as the relevant party may notify to the other party from time to time; and
delivered/sent either:
personally;
by commercial courier;
by pre-paid post;
if the notice is to be served by post outside the country from which it is sent, by airmail;
by fax; or
by e-mail.
A notice is deemed to have been received:
if delivered personally, at the time of delivery;
if delivered by commercial courier, at the time of signature of the courier’s receipt;
if sent by pre-paid post, 48 hours from the date of posting;
if sent by airmail, five days after the date of posting;
if sent by fax, at the time shown in the transmission report generated by the machine from which the fax was sent; or
if sent by e-mail, 4 hours after the sent time (as recorded on the sender’s e-mail server), unless the sender receives a notice from the party’s email server or internet service provider that the message has not been delivered to the party,
except that, if such deemed receipt is not within business hours (meaning 9:00 am to 5:30 pm on a Business Day), the notice will be deemed to have been received at the next commencement of business hours in the place of deemed receipt.
To prove service, it is sufficient to prove that:
in the case of post – that the envelope containing the notice was properly addressed and posted;
in the case of fax – the notice was transmitted to the fax number of the party; and
in the case of email – the email was transmitted to the party’s email server or internet service provider.
General
Further assurances
Each party must (at its own expense, unless otherwise provided in the Agreement) promptly execute and deliver all such documents, and do all such things, as any other party may from time to time reasonably require for the purpose of giving full effect to the provisions of the Agreement.
Third parties
The Agreement is made for the benefit of the parties to it and their successors and permitted assigns and is not intended to benefit, or be enforceable by, anyone else.
Costs
All costs and expenses in connection with the negotiation, preparation and execution of the Agreement, and any other agreements or documents entered into or signed pursuant to the Agreement, will be borne by the party that incurred the costs.
Entire agreement
The Agreement, consisting of these Terms, the relevant Quote and any other documents incorporated in writing, contains the entire understanding between the parties in relation to its subject matter and supersedes any previous arrangement, understanding or agreement relating to its subject matter. There are no express or implied conditions, warranties, promises, representations, obligations or other terms, written or oral, in relation to the Agreement other than those expressly stated in it or necessarily implied by statute.
Severability
If a provision or the application of a provision of the Agreement is invalid, prohibited, void, illegal or unenforceable in a jurisdiction:
it is to be read down or severed or be ineffective in that jurisdiction to the extent of the prohibition, invalidity voidness, illegality or unenforceability; and
this will not affect the validity or enforceability of that provision in another jurisdiction, or the remaining provisions.
No waiver
Any waiver of a right under the Agreement must be in writing and signed by the party granting the waiver.
No failure, delay, relaxation, forbearance or indulgence by a party in exercising any power or right conferred upon it under the Agreement will operate as a waiver of that power or right in any subsequent matter or prejudice or restrict the rights of the party. No single or partial exercise of any power or right precludes any other or future exercise of it, or the exercise of any other power or right under the Agreement.
Amendment
The Agreement must not be varied except by written instrument executed by all of the parties.
Assignment
A party must not assign or otherwise transfer, create any charge, trust or other interest in, or otherwise deal in any other way with, any of its rights under the Agreement without the prior written consent of the other party.
Counterparts
The Agreement may be executed in any number of counterparts, each of which is an original and which together will have the same effect as if each party had signed the same document.
Electronic exchange
Delivery of an executed counterpart of the Agreement by facsimile, or by email in PDF or other image format, will be equally effective as delivery of an original signed hard copy of that counterpart.
If a party delivers an executed counterpart of the Agreement under clause 14.11:
it must also deliver an original signed hard copy of that counterpart, but failure to do so will not affect the validity, enforceability or binding effect of the Agreement; and
in any legal proceedings relating to the Agreement, each party waives the right to raise any defence based upon any such failure.
Governing law and jurisdiction
The Agreement and any disputes or claims arising out of or in connection with its subject matter or formation (including non-contractual disputes or claims) are governed by, and shall be construed in accordance with, the laws of New South Wales, Australia.
The parties irrevocably agree that the courts of New South Wales, Australia have exclusive jurisdiction to settle any dispute or claim that arises out of, or in connection with, the Agreement or its subject matter or formation (including non-contractual disputes or claims).
| Non-Solicitation Periods
3 months; 6 months; 9 months; 12 months