Our proposals to You, and our provision of Services are subject to our standard Terms and Conditions unless we agree otherwise with you in writing prior to the provision of such proposals and/or Services. Should these standard Terms and Conditions be modified at any time, the Terms and Conditions applicable at the time of agreement to a proposal will apply.
1. Capabilities, not Individuals
In our proposals for services, We agree to provide capabilities rather than individuals, and thus reserve the right to change resources, if needed, in consultation with You.
2. Validity of Proposals
Our proposals are valid for 30 days from the date of issue to You, unless otherwise stated within the proposal. We reserve the right to amend the pricing at any time.
The contents of this proposal and any documents provided to You as part of this proposal (including where documents are provided as part of the undertaking of the project) constitute Our commercially valuable and confidential information and may only be used by You for the purpose of evaluating this proposal. It must not be disclosed to any third party without Our prior consent, unless You are required to do so by law.
Without limiting the above, You must treat all information provided by Us in connection with the Services or products, including Our technical, operational, billing, pricing and commercial information as confidential. On completion or earlier termination of the project, You must return to Us all confidential information of Ours that has been provided to You. This does not require You to return any specific documentation deliverables for which You have paid Us.
4. Intellectual Property
We (or our licensors) retain ownership of all intellectual property subsisting in the contents of this proposal and any documents or other materials provided to You as part of this proposal (the “Deliverables”). Following payment by You of fees relevant to such Deliverables, We grant to You a non-exclusive, non-transferable royalty free licence to use the Deliverables for Your internal business purposes only. You grant Us a perpetual, non-exclusive, non-transferable, royalty free licence to use any materials (including software) provided by You to Us in relation to the engagement scope. This licence includes the right to copy, modify, adapt or merge the materials with other materials. You indemnify Us against any loss, damage, liability, expenses, cost or expense incurred by Us as a result of a claim by a third party against Us that any materials provided by You to Us infringes the intellectual property of a third party.
5. Our People
You must not, and must ensure that Your related bodies corporate do not, during the term of the engagement and for 6 months after the completion and signoff date, seek to employ or engage the services of any employee or contractor involved in providing the Services to You. This does not apply in relation to a person who responds to a genuine published advertisement. You acknowledge that this restraint is reasonable in its extent and goes no further than is reasonably necessary to protect Our interest in maintaining Our personnel.
6. Scope Management and Project Change
All prices, Services and products detailed in our proposals are based on, among other things, Our current understanding of Your requirements. During delivery of Services in a proposal, new or updated requirements or environment changes may necessitate changes to the scope of Services or products in a proposal. If additional design or other work is required to provide any Service or product (e.g. installation of network infrastructure), further costs may apply and will be advised to You before commencement of work.
Changes can only be made to this proposal (including the Services) in accordance with the following Change Management process. This process will involve one Party sending a Change Request to the other Party for approval of change to any Services or other aspects to this proposal. If both Parties agree the Change Request, We will provide You with a statement of impacts to the Services parameters (schedule, cost, quality, contract, warranty, scope & resource) unless this is already included in the Change Request (for example, where We send a Change Request to You). If the Parties then agree with these impacts and sign the Change Request, We will perform the work.
You acknowledge that rejecting changes to scope may result in our inability to deliver to the original scope of the proposal. In such cases We and You will agree a mutually acceptable compromise, or if We cannot do so, the parties agree to terminate further work under the proposal. At such time, You authorise Us to invoice You for any and all completed deliverables, and pro-rata for effort expended in the production of incomplete deliverables.
7. Pricing and Payment
In addition to the fees payable under our proposals, You must reimburse Us for all out-of-pocket expenses (including all travel and accommodation expenses) reasonably and actually incurred in performing the Services and/or providing products, provided that We:
- First obtain written approval (including by electronic mail) for each expense from Your representative; and
- Produce a valid invoice or receipt when claiming each expense.
If You do not pay any amount due We may discontinue the provision of the Services or products and/or charge You interest (calculated on a daily basis) on any unpaid amounts at an annual rate equivalent to the Official Cash Rate set by the Reserve Bank of Australia.
Our payment terms are Net 30 days from invoice issuance date. For the avoidance of doubt, public holidays, weekends and other non-working days shall be counted in the 30 days.
8. Taxes and Duties
Unless otherwise expressly stated, all prices in this proposal are exclusive of GST and other transactional taxes (including value added taxes, charges, withholding taxes, duties (including customs duty and stamp duty), excise, sales tax and other similar taxes) which may be imposed by any taxing authority where the Services and/or products are delivered. You agree that you are liable for the payment of any such taxes, excise and duties to the relevant authorities.
9. Term and Termination
These terms and conditions apply from the date on which You ask Us to commence performance of the Services or provision of products relevant to the project, and will expire on the date on which the project is completed unless terminated earlier (provided that clauses 3, 4, 9, 10 and 11 and any other provision which, by its nature, is intended to survive termination, will survive any expiry or termination of these terms and conditions).
Either You or We may terminate the engagement immediately by notice in writing to the other Party if:
- that other Party is in breach of these terms and conditions and such breach has not been remedied within 14 days of receipt of a notice from the Party not in breach specifying the breach and requiring it to be remedied; or
- that other Party becomes or resolves to become subject to any form of insolvency administration, is or begins to be wound up (other than for the purposes of reconstruction or amalgamation), enters into any arrangement between itself and its creditors, or is unable to pay its debts as and when they fall due.
10. Liability and Reliance
In performing the Services, We have relied on the timeliness and accuracy of the information You have provided and any assistance We require from You during Our engagement (including obtaining all necessary third party consents). You indemnify and hold Us harmless against any loss, expense, damage or liabilities that may result from any third party claims against Us arising out of or in relation to the provision of the Services and products.
We will use due care and skill in performing the Services contemplated under this proposal, and will use Our reasonable efforts to comply with any project schedule, but We do not guarantee the Services will be free from all errors or necessarily provided by specific dates or times, and do not warrant the Services, or any recommendations made, will produce particular results or outcomes (including achieving any external certification, accreditation or industry standards). Acknowledging that You are best placed to review recommendations made as they will or may impact You, and any related risks arising from implementing any recommendation, You must make Your own assessment of the information and any recommendations provided by Us, and satisfy Yourself as to its appropriateness for Your specific requirements, prior to implementing any recommendation provided by Us. You acknowledge that the proposed Services may result in or cause interruptions, loss and damage to You and Your computer systems, networks, websites, software, hardware, internet connections and data and You agree that the extent permitted by law We have no liability to You whatsoever as a result of those interruptions, loss or damage.
Subject to the previous paragraph, we accept liability arising from our breach of contract or negligence for:
- any cost or expense you reasonably incur that is a direct result of, and flows naturally from, such breach or negligence (but excludes loss of profits, likely savings and data), but we limit our liability for all such claims in aggregate to the total amount payable to us under this proposal.
- any personal injury or death to Your employees, agents and contractors in relation to the supply of the Services; and
- any damage to Your real or tangible property resulting from the supply of the Services and products but We limit Our liability to Our choice of repairing or replacing the property or paying the cost of repairing or replacing it.
Except as set out in the previous paragraph, we exclude all other warranties, rights, remedies and liability (including for loss of profits or anticipated savings, economic loss, lost data or any indirect or consequential losses or damage) to you or a third party for breach of contract, negligence or breach of any other law. For any liability which cannot lawfully be excluded but can be limited, our liability is limited to our choice of re-supplying or paying the cost of re-supplying services and repairing, replacing or paying the cost of repairing or replacing goods.
11. Governing Law
These terms and conditions are governed by New South Wales law and You and We each submit to the exclusive jurisdiction of the courts of New South Wales.