1.1 These Standard Terms & Conditions are to be read with the attached Proposal. They apply to:
1.1.1 all services that we perform for the parties (other than us) to our Proposal (“you”) that are described in that Proposal;
1.1.2 any additional services requested by you from time to time; and
1.1.3 any other services agreed in writing by the parties from time to time, (together called “the Services”).
1.2 Together, the Proposal and the Standard Terms & Conditions are called “this agreement”. If the two documents are inconsistent, the terms in the Proposal overrule the Standard Terms & Conditions. This agreement constitutes the entire agreement between the parties with respect to our work under this agreement and supersedes all prior agreements, proposals, oral and written representations and negotiations.
1.3 This agreement commences on the date you accept the Proposal by signing and returning a copy of the Proposal. If you do not return a copy of the signed Proposal to us and continue to provide us with instructions in respect of the Proposal, you will be deemed to have accepted the terms of this agreement.
2 OUR OBLIGATIONS
2.1 Valiente Pty Ltd and its affiliates and controlled companies (collectively referred to as “Valiente”, “us” or “we”) must use all reasonable commercial efforts to complete the Services within the set time. We will perform the Services with due care, competence and diligence; however, the quality of the Services will depend on input from you.
3 YOUR OBLIGATIONS
3.1 You must instruct us fully and, in a timely fashion, and give us each of the following (as they are ordinarily reasonably required to perform the Services):
(i) Information - we are entitled to rely on the accuracy of the information provided to us without independently verifying it. That is so whether the information is provided by you, your representatives, or your advisers. You are required to inform us if any information provided ceases to be true and accurate;
(ii) Access - to files, records and information technology systems, to premises and to people (whether management or staff) with relevant skills and experiences;
(iii) Resources - you must provide (and designate to the assignment) all resources that are reasonably necessary to ensure timely approval, development and sign-off of all project plans, specifications, accounts and deliverables.
3.2 You acknowledge that if you fail to comply with the terms of clause 3.1, the Services provided to you may be materially adversely affected.
3.3 You agree that any commercial decisions that you make are not within the scope of our duty of care, and in making such decisions you should take into account the restrictions on the scope of our work and other factors, commercial and otherwise, of which you and your other advisers are, or should be, aware from sources other than our work.
4.1 Valiente will not be liable for any failure or delay in performing the Services if that failure or delay arises from anything beyond its control, including the untimely performance by you of your obligations, accidents, war, strikes, lock-outs, fire at our premises. This list is non-exhaustive.
5 FEES & EXPENSES
5.1 You agree to pay:
5.1.1 the fees and expenses relating to the Services which are set out in the Proposal; and
5.1.2 any other amounts payable under this agreement, including any fees and expenses otherwise arising out of, or in connection with, any additional services agreed to be provided to you under this agreement, in accordance with this agreement.
5.2 Unless this agreement expressly provides otherwise, you have no right of set-off against a payment due to us under this agreement.
5.3 We will issue our invoices monthly for fees and any expenses relating to the Services to you or as you may direct. In the event that you direct us to issue an invoice to another party, you will remain responsible for payment until our invoice is paid in full.
5.4 We are entitled to review the fees quoted in the Proposal if:
(i) you do not proceed with the engagement within 60 days of the date set out in the Proposal;
(ii) the scope of the Services change; or
(iii) we are still performing the Services, (including any related services), at the commencement of each new financial year following this agreement.
6.1 You agree to pay all fees and expenses within 5 days of the invoice date. Accounts may be paid by electronic funds transfer, internet banking or cheque. Credit card payments are not accepted.
6.2 If you fail to pay an account, we may:
(i) charge you interest at the rate from time to time fixed under the Penalty Interest Rates Act 1983 (Vic) on any amount of our fees or expenses that remains unpaid for 30 days after our accounts has been sent to you;
(ii) choose to withhold delivering up to you the documentation or any worked that has been carried out until all accounts, including interest, are paid in full;
(iii) choose not to perform any further work for you until all accounts, including interest, are paid in full; and/or
(iv) terminate this agreement.
7.1 Both Valiente and you agree to take reasonable steps (including within our respective organisations) to maintain the confidentiality of any proprietary or confidential information of the other. For the purposes of this clause proprietary or confidential information includes: any confidential or proprietary information in respect of each party and their respective related bodies corporate (as that term is defined in the Corporations Act 2001 (Cth)), which is not in the public domain and includes any document, book, account, process, methodology, program, database, research, development, specification, drawing, design or know-how, financial data, quotations, short-term and long-term plans, business objectives, trade secrets, strategic plans, corporate deliverables, government submissions and all past, present or future business activities of each party or their related bodies corporate.
7.2 Subject to our duty of confidentiality, you agree we may act for your competitors or for other clients, whose interests are or may be opposed to yours.
8 INTELLECTUAL PROPERTY RIGHTS
8.1 Subject to this clause 8, all Intellectual Property Rights belonging to Valiente before signing this agreement (Valiente IP) will be retained by Valiente.
8.2 Unless otherwise agreed in writing by you, you will own any new Intellectual Property Rights in any materials or other work that you pay Valiente to create or develop under this agreement (Valiente Work) which will vest in you on payment of our fees and expenses in accordance with this agreement. You grant a non-exclusive, non-transferable, royalty free and irrevocable licence to Valiente to use the Valiente Work. For the avoidance of doubt, we retain all Intellectual Property Rights in the Valiente IP, including Valiente IP that may be incorporated into materials developed for you. Valiente grants to you a royalty-free, non-exclusive, non-transferrable and irrevocable licence to use any Valiente IP to the extent necessary to receive the full benefit of the Valiente Work.
8.3 We will retain all copyright (and other Intellectual Property Rights) in all working papers, reports and written advice we provide to you - although you will have the full right to use these materials within your own organisation. If you wish to use these materials outside your own organisation, you must first get our written permission in accordance with clause 11.
8.4 You consent to us inserting your logos and other similar intellectual property on our deliverables where appropriate unless you notify us to the contrary. We acknowledge that such use will not amount to any transfer of ownership to us.
8.5 In this clause 8 Intellectual Property Rights means all industrial or intellectual property rights including patent rights, copyrights, registered design, design rights, trademarks, service marks, confidential information and trade secrets, moral rights and other similar proprietary rights, all rights of whatever nature in computer programs, firmware, micro-code and other computer software and data, and all intangible rights and privileges of a nature similar to any of the foregoing.
9 INDEMNITY FOR LIABILITY TO THIRD PARTIES
9.1 You agree to indemnify Valiente against all liabilities, claims, costs and expenses collectively referred to as “Loss” (including any GST payable by Valiente on amounts paid by you under this indemnity) incurred by Valiente in respect of:
9.1.1 a breach or non-performance of this agreement by you; or
9.1.2 any claim by a third party which is related to, arises out of, or is in any way associated with the Services or this agreement, including any breach of this agreement or any negligent, wrongful or wilful act or omission by you.
However, the indemnity does not apply to any Loss in respect of any matters which are finally determined to have resulted from Valiente’s gross negligence, wilful misconduct acts or fraud.
10 EXCLUSIONS AND LIMITATIONS OF LIABILITY
10.1 If the Competition and Consumer Act 2010 (Cth), the Corporations Act 2001 (Cth) or any other legislative provision prohibits or otherwise precludes the restriction, modification or exclusion of any statutory condition, warranty, guarantee, right, remedy or other benefit, then this clause 10 does not restrict, modify or exclude it. Unless prohibited by law, no term, condition or warranty is implied except as expressly provided in this agreement.
10.2 You agree that for all loss or damage sustained by you in relation to this agreement (including interest and costs) whether arising from breach of contract, tort (including negligence) or otherwise, Valiente is only liable to the extent of three times its fees (excluding GST) rendered and actually paid for providing the Services.
10.3 If a term is implied into this agreement by law, which cannot be excluded, you agree that Valiente may, in its absolute discretion and to the extent it is allowed by law, choose either to re-supply the Services, or to pay you the cost of having the Services re-supplied.
10.4 Our liability to you arising in connection with this agreement (if any) is limited to that proportion of the loss or damage (including interest and costs) suffered by you, which is agreed between us or ascribed to us by a court or tribunal of competent jurisdiction allocating proportionate responsibility to us having regard to the extent of our responsibility for the loss or damage and the contribution to the loss or damage in question by you and any other person. Valiente is not liable:
(i) to the extent that you or any other person is responsible and / or liable for an act or omission that contributed to your loss;
(ii) for any indirect or consequential costs, loss or damage or loss of profits, business interruption, loss of data, loss arising out of claims for third parties, lost opportunities arising under or in connection with this agreement;
(iii) for any defect or deficiency in any system or service that is not developed or provided by Valiente under this agreement. That includes (without limitation) your production and legacy systems and systems that receive data from systems produced by Valiente.
10.5 This clause has no application to any liability arising directly as a result and to the extent of fraud.
11 USE OF OUR REPORTS
11.1 If you wish to provide a third party with copies of our working papers, reports, letters, information, advice or other deliverables, then you must obtain our prior written consent and we reserve the right to:
(i) set the terms on which those copies are given or used; or
(ii) require the third party to enter into a direct relationship with us.
11.2 We disclaim all liability to any third party for all costs, loss, damage and liability that the third party may suffer or incur arising from or relating to or in any way connected with the provision of the working papers, reports, letters, information, advice and other deliverables to the third party with or without our prior written consent.
12 NON-SOLICITATION OF PERSONNEL
12.1 During the term of this agreement, and for six (6) months after it ends, each party agrees not to knowingly solicit for employment, or to independently contract the services of, any partner or staff member or sub-contractor of the other party who is involved with performing this agreement. This clause does not apply to a general employment vacancy advertisement issued by a party.
13 PLACEMENT FEE
13.1 Where, by mutual agreement of the parties or otherwise, an offer of engagement or employment is made and accepted, a placement fee will be payable by the employing / engaging party to the other party. The placement fee will be calculated as 30% of the total annual or annualised gross remuneration offered to, and accepted by the person being engaged / employed. The placement fee will be due and payable within 30 days of the commencement date of the person being engaged / employed.
14.1 We may immediately terminate this agreement by notice in writing if you:
14.1.1 do not pay our accounts when due;
14.1.2 do not remedy a breach within 14 days after the date of receipt of a written notice to remedy such breach;
14.1.3 become insolvent; or
14.1.4 do not provide us with adequate instructions.
14.2 Either party may terminate this agreement by giving 30 days’ prior notice in writing.
14.3 On termination of this agreement by either party, you must immediately pay us our fees and expenses in relation to the Services performed up to an including the date of termination, which will be pro-rated in respect of the period for which Services have been provided, and any other fees and expenses payable under this agreement.
15 GOVERNING LAW & JURISDICTION
15.1 All aspects of the Services and this agreement are governed by, and construed in accordance with, the laws of the state or territory of the Valiente office shown on the letterhead of the Proposal. Both you and Valiente irrevocably submit to the exclusive jurisdiction of the Courts of that state or territory.
16.1 Any provision in this agreement which is invalid or unenforceable in any jurisdiction is to be read down for the purpose of that jurisdiction, if possible, so as to be valid and enforceable, and otherwise must be severed to the extent of the invalidity or unenforceability, without affecting the remaining provisions of this agreement or affecting the validity or enforceability of that provision in any other jurisdiction.
17 DISPUTE RESOLUTION
17.1 If there is a dispute relating to the Services or this agreement, the parties must submit to mediation before having recourse to any other dispute resolution process. Written notice of the dispute must be given by a party prior to any dispute being submitted to mediation before a mediator chosen by the parties or, where the parties cannot agree, by the Australian Commercial Disputes Centre (ACDC). The parties will use their best endeavours to settle the dispute promptly. The mediation will be conducted in accordance with the ACDC Mediation Guidelines to the extent that they do not conflict with the provisions of this clause. If the dispute is not resolved within 60 days after notice of the dispute, the mediation will terminate unless the parties otherwise agree.
18.1 Valiente will comply with the Australian Privacy Principles under the Privacy Act 1988 (Cth) in relation to the Services provided under this Agreement.
19.1 NOTICES – Any notice to you or us under this agreement must be in writing to the respective postal or email addresses appearing in the Proposal (or such other addresses as may be notified in writing). Notices delivered by post will be regarded as being given to the sender and received by the addressee:
19.1.1 if posted, 6 business days from and including the date of posting;
19.1.2 if sent by email, when a delivery confirmation report is received by the sender which records the time that the email was delivered to the addressee’s email address, but if the delivery or receipt is on a day which is not a business day or is after 4:00 pm (addressee’s time), it is regarded as duly given on the next business day.
19.2 SUBCONTRACTING – we are authorised to employ sub-contractors in order to perform the Services. Where we appoint sub-contractors under this clause, their work shall be deemed to be part of the Services.
19.3 VARIATION & SURVIVAL - this agreement may be varied by written agreement of the parties. Provisions of this agreement that are capable of having effect will survive its termination.
19.4 RELATIONSHIP - we will provide the Services as an independent contractor. Nothing shall be construed to create a partnership, joint venture or other relationship. No party has the right, power or authority to oblige or bind the other in any manner.
19.5 ASSIGNMENT – this agreement may not be assigned without the prior written consent of each party, which consent may not be unreasonably withheld.
19.6 NO WAIVER - a waiver or election in relation to a provision of, or any right, power, authority, discretion or remedy arising on a breach of or default under this agreement must be in writing and signed by the party granting the waiver. A party is not entitled to rely on the conduct of another party or on a delay in the exercise or non-exercise of a right, power, authority, discretion or remedy arising from a breach of this agreement or default under this agreement as constituting a waiver of that right, power, authority, discretion or remedy.