Terms & Conditions of Sale

Terms of Business

 

The following Terms & Conditions are in accordance with Australian Consumer Laws and created through consultation with the ACCC. No deviations from the following Terms & Conditions will be made under any circumstances.

 

Purpose This document sets out the terms under which goods or Deliverables are provided.

Party 1 Name - Provider (Scintex, Sherpa 4x4, Australian Online Supplies, Mosquito Foggers Australia)

Party 2 Name - Customer

Jurisdiction - Australia

Point of sale - 10 / 783 Kingsford Smith Drive, EAGLE FARM QLD  4009  AUSTRALIA

1. When the agreement becomes legal

The Agreement will form an agreement between the parties when Customer directs Provider to provide Deliverables whether orally, in writing (including email) or otherwise.

2. What will be delivered and when

Provider will supply Deliverables to Customer subject to the Agreement.

3. Provider to provide technical support

Provider will provide technical support to Customer as described in the document we provided to you .

4. Customer obligations

Customer will cooperate reasonably and in good faith with Provider. In order to fulfil this obligation, Customer agrees without limitation to:

  • perform in a timely manner any tasks reasonably necessary to enable Provider to provide the Deliverables;
  • inform Provider of all matters necessary for it to provide the Deliverables;
  • provide Provider with directions or instructions at Provider’s request;
  • provide Provider with such access to sites, files and data as is necessary to safely deliver and, where required, install the Deliverables;
  • provide the Provider with such licences as are necessary to provide the Deliverables;
  • deliver any Customer deliverables and other Customer obligations that the parties agree to in writing from time to time; and
  • respond in a timely manner to Provider’s inquiries related to the Deliverables.

5. A quote is not a contract

A quote or indication of a price issued by Provider is an invitation to treat, not a contractual offer.

6. Information and errors

There may be technical or administrative errors in a quote or other informational materials provided by Provider, including but not limited to errors with respect to product description, pricing and availability. Where Customer makes an order or payment based on erroneous information, Provider may, with notice to Customer, cancel the order and refund any payment made in respect of it.

7. Timeframes

Any timeframe given by Provider in respect of the delivery of the Deliverables, including in the Scope, is indicative only, and not binding on Provider unless Provider specifies that it is binding in writing.

8. Orders

  • The Customer may place Orders for Deliverables.
  • Each Order submitted by Customer, shall constitute an offer to purchase the Deliverables in the Order.
  • Provider may accept the offer embodied in an Order:
  • in writing; or
  • by delivering the Deliverables in accordance with the Order.
  • Provider may refuse to accept the offer embodied in any Order in whole or part without ascribing any reason and without any liability.
  • Customer will not normally be charged if provider rejects a purchase order. If Customer is charged and Provider rejects an order, Provider will refund the amount charged.

9. Changes to Deliverables by Customer

After Customer has directed Provider to provide Deliverables, and prior to the delivery of Deliverables, Customer may only direct Provider to change the Deliverables with Provider’s written agreement.

Customer acknowledges that a change in Deliverables at its direction may result in a change in fees and charges payable to Provider, and in the delivery timetable.

10. Cancellation

  • Customer may cancel the delivery of Deliverables any time prior to the date of delivery, in which case Provider will refund moneys paid in respect of the Deliverables in an amount pro rated to the degree to which their delivery is complete.
  • In respect of an order in which the Provider must source the Deliverables from outside Australia, Customer agrees to pay any freight costs irrespective of cancellation.
  • If the Customer orders Deliverables that the Provider must order from outside Australia, the Provider must be notified of the cancellation within 1 business day of placing the order outside Australia, or the full price will be charged.
  • Other than set out explicitly in the Agreement, all orders by the Customer to the Provider are non-refundable.
  • If the Customer cancels the delivery of the Deliverables before the date scheduled for Delivery/at any time, the Provider may charge a cancellation fee of 25% of the gross order value (including any freight, delivery or transaction fees connected with the order) placed by the Provider for the Customer.
  • Provider will use its best endeavours to deliver Deliverables to the Site at the time agreed between the parties.
  • Delivery of Deliverables will be deemed to have taken place when the Deliverables arrive at the Site.

11. Cancellation fee

  • Customer may cancel the delivery of Deliverables any time prior to the date of delivery, in which case Provider will refund moneys paid in respect of the Deliverables in an amount pro rated to the degree to which their delivery is complete.
  • In respect of an order in which the Provider must source the Deliverables from outside Australia, Customer agrees to pay any freight costs irrespective of cancellation.
  • If the Customer orders Deliverables that the Provider must order from outside Australia, the Provider must be notified of the cancellation within 1 business day of placing the order outside Australia, or the full price will be charged.

12. Delivery

  • Provider will use its best endeavours to deliver Deliverables to the Site at the time agreed between the parties.
  • Delivery of Deliverables will be deemed to have taken place when the Deliverables arrive at the Site.

13. Customer’s delay or prevention of delivery

If Provider is unable to deliver the Deliverables because of an act or omission of Customer including a failure of Customer to fulfil its Customer obligations under the Agreement:

  • the risk in the Deliverables will pass to Customer;
  • the Deliverables will be deemed to have been delivered; and
  • Provider may store the Deliverables until actual delivery is possible and Customer will be liable for all related costs and expenses.
  • Provider reserves the right not to deliver certain Deliverables if the suppliers of the Deliverables to Provider fail to procure the Deliverables.
  • Provider will provide Customer with written notice of the undelivered Deliverables at the earliest practicable date.
  • Customer will not be liable to pay for undelivered Deliverables and will be entitled to a refund for amounts paid in respect of those undelivered Deliverables.

14. Non-delivery

  • Provider reserves the right not to deliver certain Deliverables if the suppliers of the Deliverables to Provider fail to procure the Deliverables.
  • Provider will provide Customer with written notice of the undelivered Deliverables at the earliest practicable date.
  • Customer will not be liable to pay for undelivered Deliverables and will be entitled to a refund for amounts paid in respect of those undelivered Deliverables.

15. Legal responsibility for goods

Risk in Deliverables will pass to Customer upon delivery.

16. Legal responsibility after a failure to accept goods

If for any reason Customer is unavailable to accept delivery of the Deliverables, or the seller is unable to deliver the Deliverables because the buyer has not provided appropriate instructions, documents, licenses or authorisations:

  • the risk in the Deliverables will pass to Provider;
  • the Deliverables will be deemed to have been delivered; and
  • Provider may store the Deliverables until delivery when Customer will be liable for all related costs and expenses (including, without limitation, storage, insurance and redelivery).

17. Who owns the goods

Title in all Deliverables shall remain with Provider until Customer makes full payment to Provider of:

  • the Fee for the Deliverables; and
  • at Provider’s option, all moneys owing by Customer on all accounts.
  • Customer is responsible for the testing of Deliverables.
  • If Customer does not notify Provider in writing of any deficiency in the Deliverables within 5 business days of their delivery, then Customer will be deemed to have accepted such Deliverables.
  • If Customer, acting reasonably, finds the Deliverables to be faulty, Provider agrees to rectify them within a reasonable time at its own expense.
  • Small deviations from Scope or an Order will not entitle Customer to reject Deliverables.
  • However, if any such fault is caused by Customer’s direction to change the Deliverables, the rectification shall be at Customer’s expense.
  • Nothing in this clause affects Customer’s rights for any alleged failure of a guarantee under the Australian Consumer Law.
  • If Customer requires Provider to do additional work outside the scope of agreed Deliverables Provider may charge Customer for the out of scope work in addition to the Deliverables.
  • If Provider determines at its sole and absolute discretion that the requirement for any out of scope work is caused by the fault or error of Provider, Customer shall not pay for that additional work.

18. Testing by Customer

  • Customer is responsible for the testing of Deliverables.
  • If Customer does not notify Provider in writing of any deficiency in the Deliverables within 5 business days of their delivery, then Customer will be deemed to have accepted such Deliverables.

19. Faults in Deliverables

  • If Customer, acting reasonably, finds the Deliverables to be faulty, Provider agrees to rectify them within a reasonable time at its own expense.
  • Small deviations from Scope or an Order will not entitle Customer to reject Deliverables.
  • However, if any such fault is caused by Customer’s direction to change the Deliverables, the rectification shall be at Customer’s expense.
  • Nothing in this clause affects Customer’s rights for any alleged failure of a guarantee under the Australian Consumer Law.

20. Additional work

  • If Customer requires Provider to do additional work outside the scope of agreed Deliverables Provider may charge Customer for the out of scope work in addition to the Deliverables.
  • If Provider determines at its sole and absolute discretion that the requirement for any out of scope work is caused by the fault or error of Provider, Customer shall not pay for that additional work.

21. Calculation of fees for the Deliverables

Customer must pay fees for Deliverables as set out in the Scope for those Deliverables.

22. Timing for payment of the fees

Provider will invoice Customer for Deliverables and Customer will pay the amount due on the invoice within 14 days of the date of the invoice.

23. GST

Customer is responsible for paying all government charges or duties of any kind incurred in or in connection with Provider’s provision of credit, or supply of Deliverables. Such charges include without limitation all stamp duties, GST, financial institution duties, and any other charges or duties of a like kind.

24. When payment is deemed to be made

Payment will be deemed to have been made when Provider has received cleared funds in its bank account.

25. Incorporation by reference

  • If Customer obtains credit from Provider without filling out an application form, the terms and conditions of Provider’s terms of Credit Application will apply in relation to that credit.
  • In any event, these terms, including the provisions relating to security, default and the PPS Act will apply to any credit issued in respect of a Customer’s Credit Application.

26. Security Agreement

Customer acknowledges the Agreement is a Security Agreement for the purposes of the PPS Act and consents to Provider registering its Security Interest on the PPSR.

27. Collateral

For the purposes of section 20(2) of the PPS Act, the Collateral includes goods provided to Customer by Provider as well as the property described in the following clauses regarding Security Interests.

28. Customer grants a Security Interest in Deliverables

  • Until Customer’s total indebtedness to Provider is discharged in relation to Deliverables that are goods, Customer shall hold those Deliverables as bailee for Provider.
  • Customer grants to Provider a Security Interest in all Deliverables sold, leased, rented, bailed, consigned or otherwise made available to Customer by Provider including but not limited to:
  • the Deliverables and associated items;
  • the proceeds of Customer’s sale of Deliverables; and
  • any interest in book debts of Customer relating to Deliverables.

29. Proceeds of Customer’s sale of Deliverables for which payment is not complete

In the event that Customer sells the Deliverables to a third party before it has made payment in full for them to Provider, Customer:

  • assigns to Provider the benefit of any claim against such third party;
  • holds any proceeds from such sales on trust for Provider; and
  • will account fully to Provider for the proceeds of the sale of the Deliverables sold or any part thereof until Customer's total indebtedness to Provider is discharged.

30. Security over property

In order to further secure monies payable under the Agreement and any applicable Credit Application, Customer:

  • hereby as beneficial owner charges in favour of Provider by way of a fixed charge any right, title, estate or interest which Customer (and if more than 1 jointly and severally) has or may hereafter acquire in any freehold or leasehold property and personal property (chattels), with the payment of all such monies payable or to become payable by Customer;
  • grants to Provider a legal mortgage of any land now or hereafter held by Customer; and
  • shall grant a non-lapsing caveat over any freehold or leasehold property.

31. Giving effect to grant of Security Interests

Customer:

  • consents to Provider registering its Security Interests under the Agreement on the Register;
  • will execute all documents and do all things as may be required to give effect to this grant of Security Interests;
  • irrevocably appoints all and any of Provider’s company secretary and credit manager or other representative as Customer's attorney for the purposes of doing all such acts and things and executing all such documents necessary to enable Provider to register its Security Interests; and
  • agrees to indemnify Provider on an indemnity basis against all costs and expenses incurred by Provider in connection with registering its Security Interest including the preparation and registration of mortgage and charge documents, and all other costs associated with perfection and enforcement of such Security Interest on a full indemnity basis.

32. When a Customer is in default

For the purposes of this clause, Customer will be in default if:

  • Customer breaches any term of the Agreement, including failure to Provider the Fees on time and fails to remedy that breach within 10 Business Days; or
  • Customer undergoes an Insolvency Event.

33. Failure to pay

If Customer fails to pay Provider any amount under the Agreement on the due date for payment, Provider may immediately do any or all of the following, without any liability, until all overdue fees are paid:

  • charge Customer interest on the overdue amount at 5% above the Reserve Bank of Australia cash rate;
  • suspend Customer’s use of any or all of the Deliverables;
  • terminate the Agreement without any obligation to refund Customer any money in respect of the cancellation, even if the contractual term of the Agreement has not expired;
  • initiate proceedings against Customer to recover the overdue amount (despite any dispute resolution clause in the Agreement); and
  • recover all costs in relation to any action taken against Customer to recover overdue amounts, including but not limited to legal costs and outlays on a full indemnity basis.
  • In addition to Provider’s rights in relation to Customer’s failure to pay, Provider will have the following rights if Customer is in default:
  • demand immediate payment of all moneys owed by Customer to Provider whether due for payment or not;
  • recover from Customer all goods or Equipment it has supplied to Customer whether paid for or not;
  • re-sell or otherwise dispose of the goods or Equipment so recovered without reference to Customer and apply the net proceeds to Customer’s debt to Provider;
  • immediately cancel any contract in effect with Customer without any obligation to refund Customer any money in respect of the cancellation; and
  • enforce any Security Interests against Customer.
  • In order to effect recovery of goods in accordance with this clause, the servants or agents of Provider may:
  • enter upon Customer's premises (or any premises under the control of Customer or Customer's agent if the goods or Equipment are stored at other premises); and
  • use any reasonable force to effect recovery without liability for trespass or any resulting damage.
  • Provider, after having demanded payment of a sum overdue, may apply any payment paid by Customer, against:
  • Provider’s costs and disbursements in recovering the sum due;
  • any interest accrued; or
  • the amount overdue.
  • Provider may at any time set off any amount Customer owes to Provider against any amount Provider may then owe to Customer.

34. Provider’s further rights upon Customer Default

  • In addition to Provider’s rights in relation to Customer’s failure to pay, Provider will have the following rights if Customer is in default:
  • demand immediate payment of all moneys owed by Customer to Provider whether due for payment or not;
  • recover from Customer all goods or Equipment it has supplied to Customer whether paid for or not;
  • re-sell or otherwise dispose of the goods or Equipment so recovered without reference to Customer and apply the net proceeds to Customer’s debt to Provider;
  • immediately cancel any contract in effect with Customer without any obligation to refund Customer any money in respect of the cancellation; and
  • enforce any Security Interests against Customer.
  • In order to effect recovery of goods in accordance with this clause, the servants or agents of Provider may:
  • enter upon Customer's premises (or any premises under the control of Customer or Customer's agent if the goods or Equipment are stored at other premises); and
  • use any reasonable force to effect recovery without liability for trespass or any resulting damage.

35. Provider’s set-off rights

  • Provider, after having demanded payment of a sum overdue, may apply any payment paid by Customer, against:
  • Provider’s costs and disbursements in recovering the sum due;
  • any interest accrued; or
  • the amount overdue.
  • Provider may at any time set off any amount Customer owes to Provider against any amount Provider may then owe to Customer.

36. Contracting out

To the extent the law permits, Provider need not comply with any of the provisions of the PPS Act which the parties are permitted to contract out of under s115(1) and 115(7) of the PPS Act. The parties exclude the operation of s142 and 143 to the extent permitted by the law.

37. Waiver of notice rights

Customer waives its rights to receive all notices under the PPS Act that are permitted to be waived under s157(3) of the PPS Act.

38. Non-disclosure

  • Unless otherwise agreed and to the extent permitted by the PPS Act, Customer agrees not to disclose information of the kind referred to in section 275(1) of the PPS Act to an interested person, or any other person requested by an interested person. Customer waives any right it may have, or but for this clause may have had, under section 275(7)(c) of the PPS Act to authorise the disclosure of such information.
  • If Provider exercises a right, power or remedy in connection with the Agreement, that exercise is taken not to be an exercise of a right, power or remedy under the PPS Act unless Provider states otherwise at the time of exercise. However, this clause does not apply to a right, power or remedy which can only be exercised under the PPS Act.
  • The Customer represents and warrants that it has provided the Provider with all relevant information regarding Customer’s intended use and installation of the Deliverables.
  • The Customer undertakes to provide the Provider with all relevant information regarding Customer’s intended use and installation of the Deliverables on request.

39. Advice at Point of Sale

  • The Customer represents and warrants that it has provided the Provider with all relevant information regarding Customer’s intended use and installation of the Deliverables.
  • The Customer undertakes to provide the Provider with all relevant information regarding Customer’s intended use and installation of the Deliverables on request.

40. Amendment to Agreement

Provider may amend the Agreement with notice to Customer. If Customer does not accept the amendment to the Agreement, Customer may terminate the Agreement immediately with notice to Provider.

41. Termination by Provider

Provider may terminate the Agreement immediately by written notice to Customer if:

  • Customer breaches the Agreement, and has failed to remedy that breach to the satisfaction of Provider within 10 Business Days of a written notice from Provider requiring Customer to do so; or
  • Customer suffers an Insolvency Event.

42. Termination not to affect obligation to pay

Termination of the Agreement shall not affect Customer’s obligation to pay any outstanding Fees or other amounts in relation to Deliverables.

43. Warranty

  • Provider warrants that any goods making up Deliverables will be free from defects in materials and workmanship for a period of 12 months unless otherwise specified from delivery.
  • Provider does not make any further representation or warranties as to the merchantability of its domestic product range.
  • Provider reserves the right to inspect and test the product/s for the purpose of determining the extent of any defect and the validity of any claim made under this warranty. All defective parts/products replaced by Provider under this warranty will be deemed to be the property of Provider.
  • The consumer is liable for all costs to return the goods to and from the point of sale.
  • A futile warranty fee of $85 (inc GST) will apply to all futile warranty claims.
  • This warranty will not apply if the goods are rendered faulty by a factor other than a defect in materials and workmanship. Such factors include but are not limited to:
  • damage through misuse (including failure to maintain, service or use with proper care), neglect, accident or ordinary wear and tear (including deterioration of parts and accessories and glass breakage); and
  • use for a purpose for which the product was not sold or designed.
  • This warranty does not apply to consumables such as batteries, chemicals, filters and globes.
  • Warranty does not cover parts designed to wear, including but not limited to, blades, cutting teeth, cutting discs, pump seals, pump vanes or gears, filter baskets & elements, pulleys, clutches, chains, drive belts, bearings, brake shoes and pads.
  • When products are sourced through local (Australian) distributors the customer is to work to resolve a claim directly with the distributor. The Provider will supply the Customer with necessary contact details.

44. Exclusion of express warranties

Except as expressly provided in the Agreement, Provider makes no warranties or guarantees that:

  • the Deliverables will last a lifetime;
  • that there will not be any variations in colour in the Deliverables; and
  • that deterioration of serviceable components will not occur over time.

45. Limitations, exclusions and indemnities subject to the law

All limitations, exclusions and indemnities in the Agreement are subject to Non Excludable Conditions to the extent of any inconsistency, and apply to the fullest extent permissible by the law.

46. Limitation of liability

Provider [limits liability as much as the law allows] to Customer for the Deliverables, including liabilities caused by:

  • any act or omission of the Provider, its personnel or any related body corporate under or in relation to the Agreement;
  • the Provider’s breach of the Agreement;
  • the termination of the Agreement;
  • the Customer’s failure to fulfil its obligations under the Agreement;
  • any delay in the provision of the Deliverables;
  • any unauthorised activity in relation to the Deliverables;
  • the Customer’s use of or reliance on the Deliverables for a purpose other than the business purposes of the Customer or the reasonably expected purpose of the Deliverables;
  • any personal injury or death arising directly or indirectly in connection with the Agreement;
  • any loss or damage to property arising directly or indirectly in connection with the Agreement;
  • failure of any third party component including, without limitation, equipment, materials, tools or power failure;
  • the Customer’s failure to observe proper safety measures and procedures;
  • the delivery, setup and installation of Deliverables;
  • the use, or breakdown of, Equipment;
  • any harm to or claim by a third party in connection with the Deliverables;
  • failure of any third party component including, without limitation, software failure, hardware failure, network failure, or power failure;
  • the Customer’s failure to update the Deliverables to the most recent version;
  • the Deliverables being inaccessible to that Customer for any reason;
  • incorrect or corrupt data, lost data, or any inputs or outputs of the Deliverables;
  • computer virus, trojan and other malware in connection with the Deliverables;
  • security vulnerabilities in Deliverables or any breach of security that results in unauthorised access to or corruption of Data or data;
  • failure of any third party software including, without limitation, the operating system and any other software;
  • failure of the Customer to maintain hardware sufficient to meet minimum hardware requirements for the Deliverables;
  • failure of any third party component including, without limitation, hardware failure, network failure, or power failure;
  • the Customer’s participation in any experiments, beta tests or pilots;
  • reliance on the Provider’s advice;
  • the Customer or its personnel’s failure to follow the Provider’s advice or instructions;
  • the Customer’s participation in any experiments, beta tests or pilots;
  • the Customer’s failure to provide sufficient access or accurate information for the Provider to provide the Deliverables;
  • the infringement or claimed infringement of the Intellectual Property Rights or Moral Rights of any person in connection with the Agreement; and
  • any party’s failure to fulfil any formalities necessary to give full effect to an assignment of Intellectual Property Rights.

47. General indemnity

Customer indemnifies the Indemnified against all Costs suffered or incurred by the Indemnified, however caused, arising wholly or partially, directly or indirectly, in connection with the Agreement or Customer’s use of the Deliverables.

48. Specific indemnities

Without limiting the generality of the section entitled "General Indemnity" in the Agreement, Customer indemnifies the Indemnified against any Costs arising directly or indirectly from:

  • Customer’s breach of the Agreement;
  • the Customer’s breach of the Agreement;
  • the Provider’s enforcement of its rights in connection with the Agreement, including legal costs on a full indemnity basis;
  • any harm to, claim or action by a third party arising directly or indirectly from the Customer’s use of the Deliverables;
  • any personal injury or death arising directly or indirectly out of the Customer’s conduct;
  • any damage to property arising directly or indirectly out of the Customer’s conduct;
  • the Customer or any authorised user's infringement of any third party Intellectual Property Rights while using the Deliverables;
  • any claim, action or suit by a third party alleging infringement of their Intellectual Property Rights as a result of the conduct of the Customer;
  • any negligent or unlawful act or omission by the Customer in connection with the Deliverables;
  • the Provider’s or a third party’s reliance on a misleading representation made by a Customer;
  • a contract in force between the Customer and a third party connected with the Deliverables;
  • the Customer’s breach of Privacy Law;
  • the Customer’s failure to fulfil any of its obligations in the "Privacy" clause of the Agreement;
  • the Customer’s storing Data;
  • providing access to Data, or a subset of the Data, to a person who has requested such access in accordance with Privacy Law;
  • the Provider being obligated to correct Data upon request by a person in accordance with Privacy Law;
  • any complaints process initiated by a person under Privacy Law; or
  • any other cost incurred by the Provider as a result of a person pursuing rights conferred upon them by Privacy Law.
  • The Indemnified may make a claim under indemnities in the Agreement in relation to a Cost before having incurred the Cost, or before making a payment in relation to the Cost.
  • The indemnities in the Agreement shall be in addition to any damages for breach of contract to which Provider may be entitled. Nothing in the indemnities in the Agreement will be construed so as to prevent Provider from claiming damages in relation to Customer’s breach of any term of the Agreement.
  • Each indemnity in the Agreement is a continuing obligation, separate and independent from the other obligations of the parties and survives termination of the Agreement for whatever reason.

49. Conditions of indemnity

  • The Indemnified may make a claim under indemnities in the Agreement in relation to a Cost before having incurred the Cost, or before making a payment in relation to the Cost.
  • The indemnities in the Agreement shall be in addition to any damages for breach of contract to which Provider may be entitled. Nothing in the indemnities in the Agreement will be construed so as to prevent Provider from claiming damages in relation to Customer’s breach of any term of the Agreement.
  • Each indemnity in the Agreement is a continuing obligation, separate and independent from the other obligations of the parties and survives termination of the Agreement for whatever reason.

50. Remedies

The parties agree that any breach or threatened breach by the Customer of the Customer’s confidentiality obligations, and obligations under this Agreement may cause the Provider immediate and irreparable harm for which damages alone may not be an adequate remedy. Consequently the Provider has the right, in addition to other remedies available at law or in equity, to seek injunctive relief against the Customer (and its agents, assigns, employees, officers and directors, personally) or to compel specific performance of the Customer’s obligations.

51. Dispute resolution procedure

Initiation of Dispute

If there is a Dispute, then either party may notify the other with a Resolution Notice, which:

  • includes, or is accompanied by, full and detailed particulars of the Dispute; and
  • is delivered within 14 days of the circumstances giving rise to the Dispute first occurring.

Meeting to resolve Dispute

Within 14 days after a Resolution Notice is given, a representative (with the authority to resolve the dispute) of Customer and Provider must meet and seek to resolve the Dispute.

Mediation

If the representatives of Customer and Provider do not resolve the Dispute within 30 days, the Dispute will be submitted for mediation in accordance with, and subject to, The Institute of Arbitrators & Mediators Australia Mediation and Conciliation Rules.

Mediation to final and binding arbitration

If the Dispute is not settled within 30 days of the submission to mediation (unless such period is extended by agreement of the parties), it will be submitted to final and binding arbitration in accordance with, and subject to, The Institute of Arbitrators & Mediators Australia Rules for the Conduct of Commercial Arbitrations.

Costs for mediation / arbitration process

When the Dispute is submitted to mediation or arbitration, each party will pay its own Costs for the proceedings. The parties will share equally the Costs payable to The Institute of Arbitrators & Mediators Australia.

Court proceedings not to be brought before process

Subject to this section, a party must not bring court proceedings in respect of any Dispute unless it first complies with the requirements of the dispute resolution mechanism outlined in this clause.

Parties can seek urgent injunctive relief

Nothing in the Agreement prevents either party from instituting court proceedings to seek urgent injunctive, interlocutory or declaratory relief in respect of a Dispute.

Obligations and rights remain current during dispute

Despite the existence of a Dispute, the parties must continue to perform their respective obligations under the Agreement and any other agreement between the parties.

Dispute resolution provisions subject to non-excludable conditions

The obligations set out in the Agreement in relation to dispute resolution are available to the fullest extent available under the law, and subject to the Non Excludable Conditions to the extent of any inconsistency.

52. Dispute resolution not to apply to debts

The dispute resolution procedure set out in this clause will not apply in any instance where Provider seeks to enforce a debt in connection with the Agreement.

53. Intellectual Property Rights

Provider does not assign Intellectual Property Rights

The provision of Deliverables shall not be taken to be an assignment by Provider of any Intellectual Property Rights in the Deliverables. Provider owns or is intended to own all right, title and interest in Intellectual Property Rights in the Deliverables.

Customer assigns Developed IPR

  • Except for Brought IPR, Customer irrevocably assigns to Provider any and all right, title and interest Customer has in and to the Intellectual Property Rights in the Deliverables, including Developed IPR.
  • Customer will do all things necessary to effect a transfer of full legal ownership of such of Developed IPR.

Licence of Intellectual Property Rights

Provider grants Customer a licence to use Provider IPR and Developed IPR for the purposes of using the Deliverables in accordance with the Agreement.

Customer will not copy Provider IP

Customer warrants that it will not do any of the following, or permit any person over whom it has effective control to do so:

  • copy or reproduce, or create an adaptation or translation of, all or part of the Intellectual Property Rights in Deliverables in any way, except to the extent that reproduction occurs automatically through the ordinary use of the Deliverables in accordance with the Agreement;
  • incorporate all or part of the Intellectual Property Rights in Deliverables in any webpage, site, application or other digital or non-digital format;
  • sell, license, sublicense, lease, rent, distribute, disclose, permit access to, or transfer to any third party, whether for profit or without charge, any portion of the Intellectual Property Rights in Deliverables on any medium; or
  • directly or indirectly copy, recreate, decompile, reverse engineer or otherwise obtain, modify or use any source or object code, architecture, or algorithms contained in the Deliverables or any documentation associated with them.

54. Third Party IP warranty and licence

Where Provider incorporates Intellectual Property Rights belonging to a third party into the Deliverables, the developer warrants that it has the right to include that work as part of the Deliverables and hereby grants to Customer an irrevocable, non-exclusive, royalty free licence to use those Intellectual Property Rights for the purpose for which it was provided.

55. Moral Rights

To the extent that either party has Moral Rights in the Deliverables, each party, to the extent permitted by law:

  • waives those Moral Rights; and
  • consents to the doing of any or all acts or omissions in relation to the Deliverables that would, without this consent, infringe those Moral Rights, including but not limited to:
  • not identifying the correct person as the author;
  • altering, modifying, editing or rewriting the Deliverables in any way; or
  • dealing with the Deliverables in a manner that might be considered derogatory.

Each party agrees and warrants that it will obtain any Moral Rights waivers and consents necessary to ensure the other party can provide or use the Deliverables in accordance with the Agreement without infringing Moral Rights of any party.

56. Confidentiality

  • A party will not, without the prior written approval of the other party, disclose the other party's Confidential Information.
  • A party will not be in breach of this confidentiality clause in circumstances where it is legally compelled to disclose the other party's Confidential Information.
  • Each party will take all reasonable steps to ensure that its employees and agents, and any sub-contractors engaged for the purposes of the Agreement, do not make public or disclose the other party's Confidential Information.
  • Notwithstanding any other provision of this clause, a party may disclose the terms of this agreement (other than confidential information of a technical nature) to its related companies, solicitors, auditors, insurers and accountants.

57. Provider may make enquiries

Customer authorises Provider to:

  • disclose and obtain personal information to and/or from another credit provider or credit reporting agency including information relating to the commercial creditworthiness and personal creditworthiness of them;
  • use any information obtained for the purposes of assessing this credit application, collect payments due under the Agreement and notifying other credit providers of the commercial credit worthiness of them; and
  • disclose information about you where it has a duty to the public to disclose that information, and/or where it is required by law.
  • Customer must promptly notify Provider in writing of:
  • its intention to sell its business (including stock-in-trade), such notice to be given at least 14 days prior to the date of completion of the sale;
  • any proposal for the appointment of a receiver or liquidator or official manager of the business, such notice to be given immediately; and
  • any circumstances likely to lead to the appointment of a receiver, administrator, liquidator or official manager of the business, such notice to be given immediately.
  • In such circumstances Customer must:
  • keep goods separately from its other property;
  • where applicable, advise the purchaser, receiver, administrator, liquidator or official manager, as the case may be, that the stock so separated is Provider’s, subject to Provider’s Security Interest;
  • deliver the goods to Provider; and
  • at Provider’s discretion give access to Provider to permit Provider to reclaim the goods.
  • Communications must be in writing.
  • Either party may serve any Communication on the other party by sending it to that party’s email address. A Communication by email will be taken to have been received by the addressee 24 hours after the email was sent, unless the party sending the email knows or reasonably ought to suspect that the email was not delivered to the addressee's domain specified in the email address.

58. Disposal of Business

  • Customer must promptly notify Provider in writing of:
  • its intention to sell its business (including stock-in-trade), such notice to be given at least 14 days prior to the date of completion of the sale;
  • any proposal for the appointment of a receiver or liquidator or official manager of the business, such notice to be given immediately; and
  • any circumstances likely to lead to the appointment of a receiver, administrator, liquidator or official manager of the business, such notice to be given immediately.
  • In such circumstances Customer must:
  • keep goods separately from its other property;
  • where applicable, advise the purchaser, receiver, administrator, liquidator or official manager, as the case may be, that the stock so separated is Provider’s, subject to Provider’s Security Interest;
  • deliver the goods to Provider; and
  • at Provider’s discretion give access to Provider to permit Provider to reclaim the goods.

59. Communications

  • Communications must be in writing.
  • Either party may serve any Communication on the other party by sending it to that party’s email address. A Communication by email will be taken to have been received by the addressee 24 hours after the email was sent, unless the party sending the email knows or reasonably ought to suspect that the email was not delivered to the addressee's domain specified in the email address.

60. Inconsistency with other documents

If the Agreement are inconsistent with any other document between the parties, the Agreement prevails to the extent of the inconsistency.

61. Relationship of parties

The relationship of the parties under the Agreement does not form a joint venture, partnership or agency, or create any form of employment relationship. The relationship of Provider and Customer under the Agreement is that of independent contractor and principal. No act or omission of either party is to bind the other party except as expressly set out in the Agreement.

62. Governing law

The laws of Queensland govern the Agreement. Each of the parties hereby submits to the non-exclusive jurisdiction of courts with jurisdiction there.

63. Amendment

The Agreement may only be amended by an agreement in writing duly executed by each party.

64. Assignment

Customer cannot assign, novate or otherwise transfer any of its rights or obligations under the Agreement without the prior written consent of Provider. Provider may assign, novate or otherwise transfer any of its rights or obligations under any contract arising from the Agreement to a third party without notice to, or the prior consent of, Customer, but if Provider requires, Customer will sign any documents to give effect to an assignment, novation or transfer by Provider under this clause.

65. Unforeseen Events

  • The obligations of Provider under the Agreement are suspended to the extent that an Unforeseen Event affects them, as long as the Unforeseen Event continues. However, if an Unforeseen Event continues for more than 40 Business Days, Provider may terminate the Agreement by notice in writing to Customer of not less than 10 Business Days.
  • The occurrence of an Unforeseen Event does not suspend the obligation of Customer to pay any money under the Agreement.
  • A party claiming an Unforeseen Event must use their best endeavours to remove, overcome or minimise the effects of that Unforeseen Event as quickly as possible.

66. Time is of the essence

Time is of the essence for the performance of Customer’s obligations.

67. General and interpretation

The parties agree to:

68. Definitions

Agreement

mean the legally binding agreement embodied in this document entitled "Terms of Business".

Australian Consumer Law

means the Australian Consumer Law set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth).

Brought IPR

means Intellectual Property Rights that Customer owned prior to the provision of the Deliverables.

Business Days

means a day (other than a Saturday, Sunday or public holiday) on which banks are open for general banking business in Brisbane.

Communication, Communications

means any written communication including each notice, consent, approval, request and demand) under or in connection with the Agreement.

Confidential Information

means information that is by its nature confidential, including but not limited to information relating to the:

  • Customer or Customer's clientele;
  • personnel, policies, practices, clientele or business strategies of Provider; and
  • Intellectual Property Rights of a party;
  • terms of the Agreement,
  • but does not include information:
  • already rightfully known to the receiving party at the time of disclosure by the other party; or
  • in the public domain other than as a result of disclosure by a party in breach of its obligations of confidentiality under the Agreement.

Cost, Costs

means any costs, expenses, losses, damages, claims, demands, proceedings, and other liability.

Credit Application

means an application by Customer for Provider to issue them with credit.

Data

means information the Customer provides to the Provider.

Deliverable, Deliverables

means goods and services that the Provider is in the business of providing.

Developed IPR

means Intellectual Property Rights in the Deliverables that may arise by virtue of the provision, installation or development of the Deliverables including Customer’s contributions that provision, installation or development.

Dispute

means any dispute arising between Customer and Provider in connection with the Agreement.

Equipment

means:

  • equipment the Provider has brought to a Site; and/or
  • equipment hired by the Customer from the Provider.

Fee, Fees

means the amount payable in respect of Deliverables provided by Provider to Customer, including all costs, charges and expenses reasonably and properly incurred by Provider.

Indemnified

means Provider and its directors, employees, contractors and agents.

Insolvency Event

means in respect of a party (the Insolvent), the appointment of an administrator, a receiver or receiver and manager in respect of the Insolvent, an application to a court or an order for the winding up of the Insolvent, or where anything analogous or having a substantially similar effect to any of the preceding events occurs.

Intellectual Property Rights

means all intellectual property and proprietary rights, whether registered or unregistered, including but not limited to know-how, trade secrets, patents, inventions, copyright, registered designs, trade marks, semi-conductor or circuit layouts, plant breeders rights and the right to have confidential information kept confidential; and any application or right to apply for registration of any such rights.

Moral Rights

means moral rights under the Copyright Act 1968 (Cth), or any similar rights existing under foreign laws.

Non Excludable Condition, Non Excludable Conditions

means any guarantee, condition or warranty (such as the consumer guarantees implied by the Competition and Consumer Act 2010 (Cth)), which cannot by law be excluded.

Order, Orders

means an order in writing for Deliverables in the form specified by the Provider.

PPS Act

means the Personal Property Securities Act 2009 (Cth).

PPSR

means the Personal Property Securities Register.

Privacy Policy

means Provider’s Privacy Policy, which may be viewed at [URL] or any substitute URL.

Resolution Notice

means a notice of Dispute served by a party in relation to the Agreement.

Scope

means in relation to Deliverables, a statement of work, service level agreement or other written agreement between the parties as to the scope, standards or specifications of those Deliverables.

Security Interest, Security Interests

has the meaning given to that term in section 10 of the PPS Act.

Site

means, in respect of Deliverables, the place agreed by the parties for the provision of the Deliverables, or the object in relation to which the Deliverables are delivered.

Unforeseen Event, Unforeseen Events

means an act of war (whether declared or not) or terrorism, the mobilisation of armed forces, civil commotion or riot, natural disaster, industrial action or labour disturbance, currency restriction, embargo, action or inaction by a government agency, a failure of a supplier, public utility or common carrier or computer disruption due to the effects of a virus or other malicious code.

 

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