Avantgarde Technologies Pty Ltd (“AT”) provides its consultancy services specified in any agreement between the parties on the following terms and conditions.
| 1. ISSUE AND ACCEPTANCE OF ORDER | |||
| 1.1 | The Order between AT and the Client for the supply of the Services described in the Order to the Client on the terms and conditions contained herein shall constitute a binding contract between AT and the Client adhering to the AT terms and conditions of trade. |
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| 1.2 | The following documents shall apply to, and be deemed to be incorporated in a contract formed by acceptance of the Order (“the Contract”): |
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| (a) | The Order; | ||
| (b) | these Consultancy Services Terms and Conditions; and | ||
| (c) | all documents attached to the Order or incorporated in the Order by reference. |
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| 1.3 | AT shall not provide Services to the Client without obtaining an Order or approval from the Client. | ||
| 1.4 | If the Client is unwilling or unable to accept the offer made by AT in the Order under the terms and conditions specified herein, the Client shall immediately contact AT and advise in writing of any variations it requires to be made for the acceptance or rejection in writing by the Client. | ||
| 1.5 | If the Client proceeds to accept the supply of the Services without first requesting or receiving AT’s written acceptance of variations proposed by the Client, then the Client is deemed to have accepted the terms and conditions contained herein and the terms of the Order. | ||
| 1.6 | No addition to or modification of the Contract will bind either of the parties unless it is made in writing and signed by both of them. | ||
| 1.7 | If a written contract exists between AT and the Client for the supply of the Services, the terms and conditions of the written contract shall take precedence over these Consultancy Services Terms and Conditions to the extent of any inconsistency. | ||
| 2. ENGAGEMENT AND TERM | |||
| 2.1 | The Client engages AT to perform the Services and such other related matters or ancillary work as AT may from time to time be requested to provide to the Client, to the best of its ability | ||
| 2.2 | AT will commence the Services on the commencement date nominated on the Order (“Commencement Date”) and, subject to receiving a written waiver by the Client, will complete the Services on or before the completion date nominated on the order (“Completion Date”). If there is a delay for any reason AT will ensure it communicates this to the Client as soon as practicable. | ||
| 3. CONSULTANT’S OBLICATIONS | |||
| 3.1 | AT will: | ||
| (a) | comply with Services priorities determined by the Client; and; | ||
| (b) | complete all Services outlined in the Client Order | ||
| (c) | complete the Services in accordance with all operations, safety, health and environment policies, guidelines, rules and procedures pertaining to the site or premises at which the Services are to be performed, and which have been notified to the Consultant by the Client. | ||
| 4. PERSONNEL | |||
| 4.1 | The Consultant may engage in the performance of the Services, such employees, contractors or agents as required to complete the Services in line with the agreement with the Client. | ||
| 5. PAYMENT | |||
| 5.1 | In consideration of AT providing the Services, the Client will pay the fees specified on the Order for the Services. AT will invoice the Client on a weekly basis when Services have been provided. | ||
| 5.2 | AT will furnish the Client with an invoice specifying the Client’s Order number, setting out the amount due and payable by the Client and the basis for its calculation. | ||
| 5.3 | The Client shall pay AT’s invoices by Electronic Funds Transfer within fourteen (14) days of the date of the invoice. | ||
| 5.4 | If the Client disputes any amount claimed in an invoice, the Client shall give written notification to AT Consultant stating the reasons for the dispute within 14 days after receipt of the disputed invoice. | ||
| 5.5 | Late payments encore interest calculated at 12% per annum. | ||
| 6. MATERIALS, TOOLS AND PERSONNEL | |||
| 6.1 | If AT is to provide any equipment, materials or special tools necessary for the performance of the Services, AT will provide these at cost plus a 15 percent handling fee. | ||
| 7. TERMINATION | |||
| 7.1 | If AT breaches any term of this Contract, then the Client may give notice to AT requiring it to remedy the breach within 30 days, and if the breach is not so remedied the Client may terminate the Contract immediately by notice in writing. | ||
| 7.2 | The Client may terminate the Contract by immediate notice in writing to AT in the event a receiver, or receiver and manager of any property of AT is appointed, a provisional liquidator, or official manager of AT is appointed, AT is deemed by law to be unable to pay its debts, or AT makes any arrangement or compromise with its creditors, or members, or with any class of its creditors, or members. | ||
| 8. CONFIDENTIALITY | |||
| 8.1 | All drawings, specifications and information relating to the Services, the Client’s site, the Client’s operations obtained by AT from the Client or created by AT when performing the Services are confidential to the Client and shall not be used by AT other than for the purpose of performing the Services. | ||
| (a) | AT will return or cause the return of all of the Client’s documents and other materials requested in writing by the Client. | ||
| 8.2 | The provisions of this Contract relating to secrecy or confidentiality of information will survive any completion of the Contract or any other termination of the Contract, in accordance with the respective terms and conditions of the Contract for the period of the Contract. | ||
| 9. INTELLECTUAL PROPERTY RIGHTS | |||
| 9.1 | All: | ||
| (a) | works, items, materials, documents and information in whatever form (“Works”) produced or developed by the Consultant or under the direction of the Consultant under the Contract in relation to the Services; and | ||
| (b) | intellectual property rights (including without limitation any patent (including business method patent), copyright (including any moral rights), design, confidential information, know how, trade secret, circuit layout rights, invention or trade mark) (“Intellectual Property Rights”) in all such Works will remain the property of AT. The Client has free use of this documentation and Intellectual Property within the boundaries of the Client’s organisation. For distribution or other uses intellectual property must require the written permission of AT. | ||
| 10. VARIATIONS | |||
| 10.1 | Unless otherwise agreed all variations will be valued by applying the rates applicable to the Order. | ||
| 10.2 | All variations will be incorporated into this Contract in writing and no variation will in any way vitiate or invalidate this Contract, but the value (if any) of all variations will be taken into account in ascertaining any variation to the remuneration compensation payable to AT. | ||
| 11. INDEMNITY | |||
| 11.1 | AT shall indemnify and keep indemnified the Client from and against any liabilities, damages, remedies, losses, penalties, fines, costs, expenses, demands, claims and proceedings of any nature incurred by the Client and arising directly from the failure of the Services to conform to or fulfil any term or condition of the Contract. | ||
| 11.2 | AT’s liability to indemnify the Client will be reduced in proportion to the extent that such claims, damages or losses were caused by or contributed to by the negligence of the Client. | ||
| 11.3 | In the event of any claim, action or demand made against AT arising from the provision of Services, AT limits its liability to a maximum of the total amount payable in respect to the goods and/or services set out in this agreement. In the event that this agreement sets out provision of a Managed Service arrangement for a monthly fee, the AT limits its liability to a maximum of the fee chargeable for one month. | ||
| 12. CONSULTANTS INSURANCE | |||
| 12.1 | The Consultant warrants that it has obtained and maintains throughout the duration of the Contract (including any Defects Liability Period) all insurance cover required by law and by the Contract including but not limited to the following: | ||
| (a) | Public and Products Liability Insurance with a limit of liability of not less than ten million dollars ($10,000,000); | ||
| (b) | Professional Indemnity insurance with a minimum cover of not less than one million dollars ($1,000,000); | ||
| 13. SEVERANCE | |||
| 13.1 | Each provision of this Contract will be deemed to be separate and severable from the others of them. If any provisions of this Contract are determined to be invalid or unenforceable in any jurisdiction, such determination and the consequential severance (if any) will not invalidate the rest of this Contract which will remain in full force and effect as if such provision had not been made a part thereof, nor will it affect the validity or enforceability of such provision in any other jurisdiction. | ||
| 14. CHANGES TO BE BY WRITTEN INSTRUMENT AND LIMITED WAIVER | |||
| 14.1 | This Contract may not be released, discharged, abandoned, changed or modified in any manner except by an instrument in writing signed by each of the Parties. | ||
| 14.2 | The failure of any Party to enforce at any time any of the provisions of this Contract or to exercise any right will not be construed to be a waiver nor in any way to affect the validity of this Contract or any part of it or the right of any Party to enforce each and every provision and to exercise any right. | ||
| 15. LAW OF CONTRACT | |||
| 15.1 | This Contract will be governed by and construed according to the laws in force in Western Australia from time to time and the Parties submit to the exclusive jurisdiction of the courts of that State and those courts having the right to hear appeals from them. | ||
| 16. SETTLEMENT OF DISPUTES | |||
| 16.1 | In the event of a dispute arising between AT and the Client, either party may give written notice to the other party stating the reason for the dispute. If the dispute has not been settled within fourteen (14) days from the date of service of the notice, either party may require by written notice to the other party that the matter be referred to senior representation for determination. Following receipt of a notice of referral by either party, both parties shall appoint a senior representative to discuss and all outstanding issues. | ||
| 17. NOTICES | |||
| 17.1 | Any instructions or notices to be given by one Party to the other may be given by personally delivering the same, by email or by security mail addressed to the other Party as specified on the Order or at such other address as may be notified in writing to the other Party from time to time. | ||
| 17.2 | Any instructions or notices so sent will be deemed to have been duly given, served and received if by: | ||
| (a) | personal delivery, on the day of delivery; | ||
| (b) | email, on the day following its despatch; | ||
| (c) | mail within Australia, on the FOURTH (4th) day following the date of posting; and | ||
| (d) | airmail from outside Australia into Australia, or vice versa, or by wholly outside Australia, on the SEVENTH (7th) day following the day of posting. | ||
| 18. ENTIRE CONTRACT | |||
| 18.1 | The Contract, as amended from time to time, represents the entire agreement between the parties and supersedes all prior arrangements whether written or oral and all letters, letters of intent, notices of award, purchase orders, understandings, representations and documents (if any) in relation to the Services or its performance given prior to the date of this Contract. | ||
| 19. SURVIVAL OF TERMS | |||
| 19.1 | Clauses 8 (Confidentiality), 9 (Intellectual Property) and 11 (Indemnity) in the Terms and Conditions of Consultancy Services, will survive the termination or expiration of the Contract and shall remain in full force and effect. | ||
