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Terms of Trade

1.0 Engagement

1.1 Our entire agreement with You is as set out in Our Proposal and these Terms (collectively the Agreement). These Terms and the Proposal are the only terms which are binding on Us except for any further terms agreed by Us in writing or terms imposed by statute and which cannot be excluded. The Agreement supersedes any previous arrangement, understanding or agreement relating to its subject matter. There are no express or implied conditions, warranties, promises, representations or obligations, written or oral, in relation to the Agreement other than those expressly stated in the Terms or Proposal, or necessarily implied by Statute.

Nature of relationship

1.2 We are an independent contractor of You and nothing in these Terms constitutes a relationship of employer and employee, principal and agent, partnership or joint venture between the parties.

2. Provision of the Services

Proposal

2.1 We will provide the Services to You in accordance with these Terms. These Terms apply to each separate engagement (each an Engagement) by You of Our Services. Our obligation to provide Services that are the subject of each Engagement does not arise unless and until You have notified Us of Your acceptance of the relevant Proposal.

Delivery

2.2 The commencement date, method and location of the delivery of the Services is at Our discretion unless otherwise specified in the Proposal.

2.3  If You do not notify Us of defects or deficiencies within seven days of delivery of the Services or any other deliverable, You are taken to have accepted the Services or deliverables as satisfactory.

Privacy

2.4  Where the Services concern Personal Information of any person or party, You are responsible for obtaining all relevant consents from, and providing all relevant notices to, individuals whose Personal Information is provided by You to Us in connection with this Agreement so as to ensure that all of Our Dealings with that information pursuant to this Agreement comply with Our obligations under Privacy Laws. You must indemnify Us against, and must pay Us on demand the amounts of all Losses, liabilities, costs and expenses arising out of Your failure to comply with this clause.

3. Pricing and invoicing

Pricing

3.1 The total price for the Services (exclusive of GST and Disbursements, and including a Deposit where relevant) (the Fees) are as disclosed in the relevant Proposal and are payable as follows:

(a)                 where the Proposal describes Services that are to be delivered in a Single Stage:

(i)                  where the Proposal discloses a fixed price, the fixed price is payable in arrears upon completion of the Services;

(ii)                 where the Proposal discloses an Hourly Rate or We provide Out-of-Scope Services, the Hourly Rate applies. The Fees shall be calculated on the basis of the time We spend in providing those Services on an hourly rate basis at the Hourly Rate in accordance with clause 3.3 and payable in arrears upon completion of the Services;

(b)                where the Proposal describes Services that are to be delivered in multiple Stages:

(i)                  where the Proposal discloses a fixed price, the fixed price for each Stage will be invoiced and is payable in arrears at the completion of the work described in each Stage respectively (as nearly as possible); and

(ii)                 where the Proposal discloses an Hourly Rate or We provide Out-of-Scope Services, the Hourly Rate applies. The Fees shall be calculated on the basis of the time We spend in providing those Services on an hourly rate basis at the Hourly Rate in accordance with clauses 3.3 and payable in arrears at the end of each Stage respectively.

We will invoice You for all relevant Charges for each Stage following completion of each Stage. If the Proposal does not nominate a fixed price for each Stage, We may allocate the fixed price between Stages as we determine acting reasonably.

Changes to Proposal

3.2                The Fees may change if you request a change to the scope of work set out in the Proposal, or the parties otherwise agree to amend the Proposal.

Out-of-Scope Work

3.3                Notwithstanding clause 3.1, Our applicable hourly rates (or as otherwise disclosed in the Proposal) (the Out-of-Scope Rate) apply for any Out-of-Scope Work.

Delay

3.4                Our Fees are calculated in part on the basis of anticipated project schedules. In order for Us to keep to project schedules and not incur the cost of idle resources, We may require You to provide Us with review and/or acceptance of work, deliverables or materials within a specific timeframe. If We do not receive Your review or acceptance in full by the date that We specify, We are entitled to add the length of the delay to Our project time and cost.

Reimbursement of Disbursements

3.5                You will pay all reasonable Disbursements and expenses that We properly and necessarily incur in the course of providing the Services or as disclosed in the Proposal. On request, We can provide You with documentation for the Disbursements.

4.Payment

Timing of payments

4.1  You must pay all Charges properly invoiced pursuant to clause 3 in full within 30 days after the date of the relevant invoice.

4.2  We may require advance payment before commencing any project or any Stage of any project. We may in Our discretion offer a discount for payment made in full in advance.

Method of payment

4.3  All amounts must by electronic funds transfer into the account that We nominate, or in accordance with any other payment facility that We may offer in Our discretion.

No set-off or deduction

4.4   All amounts payable by You under or in connection with these Terms must be paid without set-off, counterclaim, withholding, deduction or claim to a lien whatsoever.

Default

4.5   If You fail to pay any sum payable under these Terms at the time and otherwise in the manner provided in these Terms, You must pay interest on that sum from the due date of payment until that sum is paid in full at the Default Rate, calculated daily on the basis of a 365-day year and compounded monthly.  Interest will accrue from day to day and will be payable on demand.

4.6  You acknowledge and agree that all expenses, costs, charges, fees or disbursements incurred in or reasonably incidental to recovering or attempt to recover any outstanding monies, or exercising or attempting to exercise any right power privilege authority or remedy under the Agreement, are to the extent allowed by law payable by You to Us. On demand, You must pay to Us all such expenses, costs, charges, fees or disbursements.

Retention of Title

4.7   We retain ownership of all property that We deliver to or create for You until We have been paid in full for all Agreements and Engagements with You. You acknowledge that these Terms create a security interest in such property. You consent to Us effecting a registration on the Personal Property Securities Register in respect of such security interest. This clause does not apply to Relevant IP which is subject to clause 7.

5.  Credit Check

5.1   In determining whether to proceed with any Engagement, We may obtain details of Your personal and commercial credit information from a credit reporting agency.

6. Subcontractors

6.1   In delivering the Services, We may use third parties and subcontractors in respect of part or all of the Services in Our discretion. We will ensure such third parties and subcontractors comply with all relevant privacy and confidentiality obligations.

7. GST

Definitions regarding GST

7.1   In this clause 7:

(a)  expressions that are not defined, but which have a defined meaning in the GST Law, have the same meaning as in the GST Law;

(b)  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 7; and

(c)  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 7.

Consideration is exclusive of GST

7.2  Unless expressly stated otherwise, any sum payable, or amount used in the calculation of a sum payable, under these Terms has been determined without regard to GST and must be increased on account of any GST payable under this clause 7.

Receiving Party to pay additional amount

7.3  If GST is imposed on any supply made under or in accordance with these Terms, 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 these Terms.

Fines, penalties and interest

7.4  The amount recoverable on account of GST under this clause 7 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 7.

8. Confidentiality

8.1  Subject to clauses 8.3 and 8.4, a Disclosee must:

(a)   keep all Confidential Information confidential;

(b)  not use or exploit any Confidential Information in any way except in the proper performance of the Services in accordance with these Terms;

(c)  not disclose or make available any Confidential Information in whole or in part to any third party except in the property performance of the Services or with the consent of the Discloser;

(d)  not copy, reduce to writing or otherwise record any Confidential Information except in the proper performance of the Services in accordance with these Terms (and any such copies, reductions to writing and records will be the property of the Discloser); and

(e)  ensure that any and all Authorised Third Party Disclosees:

(i)  comply with the obligations in these Terms as if each of them was a party to these Terms in the place of the Disclosee; and

(ii)  do not do, or omit to do, anything which, if done or omitted to be done by the Disclosee, would constitute a breach of these Terms by the Disclosee.

8.2   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

8.3 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 these Terms and provided that it informs such Representatives of the confidential nature of the Confidential Information before such disclosure.

8.4 The obligations in clause 8.1 will not apply to any Confidential Information which (as shown by appropriate documentation and other evidence in the relevant Disclosee’s possession):

(a) 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 (except where that knowledge is a result of the Disclosee’s or another party’s breach of an obligation of confidentiality);

(b) is or becomes generally available to the public (except where that knowledge is a result of the Disclosee’s or another party’s breach of an obligation of confidentiality);

(c) 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;

(d)  is required by law or court order to be disclosed;

(e) is independently developed by the Disclosee without any direct or indirect use of, reference to, or reliance on any Confidential Information; or

(f)  is authorised for release or use by the written pre-approval of the Discloser but only to the extent of such written pre-approval.

9. Intellectual Property

9.1  Nothing in this Agreement implies or grants any transfer of Intellectual Property Rights between the parties. We retain ownership of all Relevant IP created by Us.

9.2 Our tools, techniques, templates, know-how and other Intellectual Property Rights, including those of any subcontractor that We may use, remain Our property or the property of Our subcontractor. You may only use such property for the purposes contemplated in the Proposal.

Licence

9.3  Where We use any intellectual property provided by You to Us in the creation of the Relevant IP, you perpetually and irrevocably licence Us to use that intellectual property as part of the Relevant IP in accordance with these Terms.

Permitted use

9.4   You may only use the Relevant IP in accordance with the use and purpose contemplated in the Proposal and these Terms. You may not use the Relevant IP for any purpose that is not reasonably ancillary to the use and purpose contemplated in the Proposal.

Moral rights

9.5  You consent to the doing of any acts, or making of any omissions, by Us or any of Our employees, officers, contractors, agents, licensees or assigns that infringes Your Moral Rights in any Works that constitute Relevant IP, including:

(a) not naming You or any other party as the author of a Work; or

(b)  amending or modifying (whether by changing, adding to or deleting/removing) any part of a Work but only if You are not named as the author of the amended or modified Work,

whether those acts or omissions occur before, on or after the date of these Terms.  You acknowledge that Your consent pursuant to this clause 9.5 is genuinely given without duress of any kind and that You have been given the opportunity to seek legal advice on the effect of giving that consent.

10. Liability and remedies

Indemnity

10.1  You shall have personal liability for, and hereby irrevocably indemnify and covenant to hold Us harmless from and against, any and all Losses that We may suffer and which arise, directly or indirectly, in connection with any breach of these Terms by You and/or any negligent or other tortious conduct in the provision of the Services.

Indemnities continuing

10.2  Each indemnity contained in these Terms is an additional, separate, independent and continuing obligation that survives the termination of these Terms despite any settlement of account or other occurrence and remains in full force and effect until all money owing, contingently or otherwise, under the relevant indemnity has been paid in full and no one indemnity limits the generality of any other indemnity.

Limitation of liability

10.3  To the maximum extent permitted by law, We and Our Representatives expressly:

(a)  (Disclaimer of warranties)  disclaim all conditions, representations and warranties (whether express or implied, statutory or otherwise) in relation to the Services, including any implied warranty of merchantability, fitness for a particular purpose or non-infringement.  Without limitation to the foregoing, We and Our Representatives make no representation, and provide no warranty or guarantee, that:

(i)  You will achieve any particular results from the provision of the Services;

(ii)  any particular individuals will perform the Services on Our behalf; or

(iii) the Services will be:

(A) error-free or that errors or defects will be corrected; or

(B) meet Your requirements or expectations.

You acknowledge that, in entering into this Agreement or in selecting or using the Services, You have not relied on any representation or warranty made by Us or on Our behalf.

(b) (Limitation of liability)  limit Our aggregate liability in respect of any and all Claims for any Losses that You and/or any of Your Representatives may bring against Us under these Terms or otherwise in respect of the Services to the following remedies (the choice of which is to be at Our sole discretion):

(i) re-supply of the Services;

(ii) payment of the costs of supply of the Services by a third party; or

(iii) the refund of any amounts paid by You to Us under these Terms in respect to the Services,

even if We have been advised of the possibility of such Losses,

and You acknowledge and agree that We hold the benefit of this clause 10.3 for Ourself and as agent and trustee for and on behalf of each of Our Representatives.

Force majeure

10.4 To the maximum extent permitted by law, We and Our Representatives expressly exclude liability for any damage and/or delay in the performance of any Our obligations under these Terms where such damage or delay is caused by circumstances beyond Our reasonable control and We shall be entitled to a reasonable extension of time for the performance of such obligations. You acknowledge and agree that We hold the benefit of this clause 10.4 on Our behalf and as agent and trustee for and on behalf of each of Our Representatives.

11. Disclaimer

Warranties

11.1  While We take all reasonable care, We are not liable for third party errors or omissions. If You supply Us with material, data or other information material to the Engagement, You must ensure that such material, data or other information complies with all relevant laws, including any relevant privacy laws. You warrant to Us that such material, data or other information is free from defect, and that You have lawful possession of and full authority to disclose or share such material, data or information. You acknowledge that We cannot verify the veracity, accuracy or legality of such material, data or other information.

Specialist Services

11.2  We are not providing expert or specialist advice or services. You should consider seeking expert advice relevant to Your industry or project.

12. Termination

Termination for breach

12.1 We may terminate the Agreement, or any individual Engagement, immediately by notice to You if an Event of Default occurs.

Termination with notice

12.2  Either party may terminate the Agreement, or any individual Engagement, for any reason or for no reason at any time by giving at least 15 Business Days’ notice to the other party.

Effect of termination

12.3  In the event of any termination of the Agreement with You, or any individual Engagement, in any circumstances and for any reason whatsoever:

(a)  You 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 these Terms by You, including Charges We incurred in the course of the provision of those Services prior to such termination); and

(b)  We will send to You a final invoice for the balance of any unbilled Charges accrued up to and including the date of termination and clause 4 will apply in respect thereof.

Partially completed deliverables

12.4  Upon the cessation of any Engagement, subject to payment of all outstanding Charges by You in accordance with the terms of these Terms, We will deliver to You any and all partially completed deliverables that are included within the scope of the Services.

Accrued rights

12.5 Termination of the Agreement will not affect any rights or liabilities that the parties have accrued under it prior to such termination.

Survival

12.6 The obligations of the parties under clause 8 (Confidentiality), clause 9 (Intellectual Property), clause 10 (Liability and remedies) and this clause 12 will survive the termination of the Agreement.

13. General

Identification

13.1 We reserve the right to identify Ourselves as the authors of work that we perform as part of Our Engagement with You. We may only make such identification in a manner that is consistent with Our obligations to You. We may also make general reference to Our work with You in the course of Our business development activities with prospective clients where relevant. We may not disclose Confidential Information or commercially sensitive information.

Notices

13.2            A notice given to a party under these Terms must be in writing sent to that party personally, by courier, by pre-paid post or by e-mail.

Third parties

13.3            These Terms 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.

Severability

13.4            If a provision of the Agreement is invalid or unenforceable in a jurisdiction:

(a)                 it is to be read down or severed in that jurisdiction to the extent of the invalidity or unenforceability; and

(b)                that fact does not affect the validity or enforceability of that provision in another jurisdiction, or the remaining provisions.

No waiver

13.5            No failure, delay, relaxation 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. 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

13.6            We may amend these Terms from time to time with or without notice to You.

13.7            The Parties may amend any Proposal in writing signed by both of the Parties.

Governing law and jurisdiction

13.8            These Terms 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 Victoria, Australia.

13.9            The parties irrevocably agree that the courts of Victoria, Australia have exclusive jurisdiction to settle any dispute or claim that arises out of, or in connection with, these Terms or its subject matter or formation (including non-contractual disputes or claims).

14. Definitions and interpretation

Definitions

14.1  The following definitions apply in these Terms and the Proposal unless the context requires otherwise:

  • Authorised Third Party Disclosee means any Representative of a Disclosee to whom that Disclosee discloses Confidential Information in accordance with clause 8.
  • Business Day means a day (other than a Saturday, Sunday or public holiday) when banks in Melbourne, Victoria are open for business.
  • Change of Control means, in respect of a particular entity, a person who Controls that entity ceasing to do so or another person acquiring Control of it.
  • Charges means Fees and Disbursements.
  • Claim means any claim, complaint, demand, proceeding, suit, litigation, action, cause of action or other legal recourse (whether in contract, tort, under statute or otherwise).
  • 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.
  • Control has the meaning given in Section 50AA of the Corporations Act.
  • Copyright Act means the Copyright Act 1968 (Cth).
  • Corporations Act means the Corporations Act 2001 (Cth).
  • Default Rate means a rate of interest of 10.00% per annum.
  • Disbursements mean disbursements and expenses incurred by Us and for which We are entitled to be reimbursed by You pursuant to clause 5.
  • 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 1, being each individual engagement of Us to provide specific Services to You pursuant to a Proposal.
  • Event of Default means any of the following on Your behalf:
    • committing any material or persistent breach of these Terms;
    • repudiating or, or, in Our reasonable opinion, evincing an intention to repudiate, the Agreement;
    • if You are a company, undergoing a Change of Control without the prior Our written consent;
    • misleading Us in any material way; and/or
    • You experiencing an Insolvency Event.
  • Fees has the meaning given in clause 1.
  • 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 Proposal, if applicable.
  • Insolvency Event means, in respect of a party:
    • 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 expressly and specifically designated as being within the scope of the Services.
  • 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 of any kind or character (including legal and other professional fees and expenses on a full indemnity basis) that a party pays, suffers or incurs or is liable for, including all:

  • liabilities on account of tax or duty;
  • 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, whether or not resulting in any liability; and
  • all amounts paid in settlement of any Claim.
  • Moral Rights has the same meaning as that term has in Part IX of the Copyright Act.
  • Out-of-Scope Rate has the meaning given in clause 3.
  • 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 Proposal (if any).
  • Personal Information has the same meaning as in any applicable Privacy Law.
  • Privacy Law means any legislation or administrative requirement (as amended from time to time) imposing an obligation in relation to the collection, use, disclosure, storage and transmission of Personal Information which is applicable to Our performance of Our obligations under the Agreement.
  • Proposal means, in respect of a particular Engagement, the document headed “Proposal” or similar setting out the scope of the Services for that Engagement as provided by Us to You.
  • Relevant IP means all Intellectual Property Rights that We make, develop or conceive (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 Our engagement with You.
  • Representatives means, in respect of a person, the employees, officers, consultants, agents and professional advisers of that person.
  • Services means the services We provide to You under these Terms in respect of each Engagement, as set out in the relevant Proposal, and includes any relevant deliverables.
  • Stage means any particular stage of the Services as specified in the Proposal.

We, Us, Our and Vievero means Vievero Pty Ltd (ABN 89 616 532 097) and its related entities and Representatives.

  • Works means all programs and programming and literary, dramatic, musical and artistic works within the meaning of the Copyright Act.
  • You and Your means the party that enters into the Agreement with Us in accordance with these Terms and the Proposal.
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