Terms and Conditions of Service
1. Definitions and Interpretation
In this Agreement, unless the context indicates the contrary:
‘Agreement’ means this agreement.
‘Customer’ means the customer (or client or any person acting on behalf of and with the authority of the Customer) as described on any quotation, work authorisation, Proposal or any other document as provided by the Supplier to the Customer.
‘Confidential Information’ means all information provided by one party to the other in connection with this Agreement where such information is identified as confidential at the time of its disclosure, but excluding:
(a) information that enters the public domain or is disclosed to a party by a Third Party, other than through a breach of this Agreement, and
(b) information developed independently by a party.
‘Disbursements’ means any costs, charges, expenses or liabilities incurred by the Supplier and owed to Third Parties in relation to the provision or delivery of the Services that are billable directly to the Customer.
‘Force Majeure Event’ means any event beyond the control of the Supplier.
‘GST’ has the meaning given in A New Tax System (Goods and Services Tax) Act 1999 (Cth), or any other similar tax.
‘Intellectual Property Rights’ means all intellectual property rights, including all copyright, patents, trademarks, design rights, trade secrets, know-how and other rights of a similar nature.
‘Payment Schedule’ means the table outlining the due dates for payment of the Service Fee, as outlined in the Agreement.
‘Proposal’ means the document titled ‘Agreement’ provided by the Supplier to the Customer in respect of the Services.
‘Supplier’ means ECL Technology Group Pty Ltd (ACN 130 376 902) its successors and assigns or any person acting on behalf of and with the authority of ECL Technology Group Pty Ltd.
‘Services’ means the services to be provided by the Supplier as outlined in the Agreement.
‘Service Fee’ means the amount detailed in the Agreement and set out in the Supplier’s tax invoices.
Third Party means an entity other than ECL Technology Group Pty Ltd (ACN 130 376 902) or its subsidiaries.
2. Acceptance
2.1 Any instructions (whether written, oral or by conduct) received by the Supplier from the Customer for the provision of Services constitutes acceptance of the terms and conditions contained in this Agreement.
2.2 Where more than one (1) Customer has entered into this Agreement, the Customers shall be jointly and severally liable for all payments of the Service Fee.
2.3 Upon acceptance of these terms and conditions by the Customer, the terms and conditions are binding and can only be amended with the written consent of the Supplier.
2.4 The Customer must give the Supplier not less than seven (7) days prior written notice of any proposed change of ownership or any change in the Customer’s name and/or any other change in the Customer’s details (including but not limited to, changes in the Customer’s address, email address or business practice). The Customer shall be liable for any loss incurred by the Supplier as a result of the Customer’s failure to comply with this clause.
2.5 None of the Supplier’s agents, employees, contractors, sub-contractors or representatives are authorised to make any representations, statements, conditions or agreements not expressed by the Supplier in writing and the Supplier is not bound by any such unauthorised statements.
3. Supplier Services
3.1 In consideration of the payment of the Service Fee, the Supplier will provide the Services to the Customer in accordance with the Agreement.
3.2 The Supplier may engage Third Party service providers in the provision of the Services pursuant to the Agreement.
4. Variation
4.1 If the Customer requires any changes to the scope and nature of the Services to be provided as outlined in the Proposal, which the Supplier advises requires additional time, material or resources to be provided by the Supplier, such changes will occur as follows:
(a) the Customer will notify the Supplier of any changes it requires; and
(b) following notification, the Supplier may (at its sole discretion) provide the Customer with notice of:
(i) the changes required to the Agreement;
(ii) the additional services required by such changes; and
(iii) the additional Service Fees and Disbursements required to undertake such additional services.
4.2 If the Customer notifies the Supplier of any changes which it requires to the Services, the Agreement will be considered varied to include such changes as agreed by the parties if the Supplier agrees to the changes.
4.3 The Customer acknowledges and agrees that any changes to the Services or Agreement will incur additional fees.
5. Customer's obligations
5.1 The Customer will provide all required material to assist the Supplier in the provision of the Services. All materials supplied by the Customer must be provided in a form suitable for incorporation into the Services without any modification by the Supplier.
5.2 If any person makes any claim alleging that the materials supplied by the Customer or any use of it by the Supplier in accordance with this Agreement, infringes any Intellectual Property Rights or any other right of any person, organisation, government body or company, the Customer hereby agrees to indemnify and hold harmless the Supplier from and against any such claim and from and against any loss (including reasonable legal fees) arising in connection with the claim.
5.3 The Customer acknowledges and agrees that it is solely the obligation of the Customer to:
(a) warrant the authenticity, accuracy and completeness of the information and documents provided by the Customer to the Supplier in respect of the supply of the Services. The Supplier takes no responsibility for the accuracy and completeness of the information and documents provided by the Customer or the information and documents submitted to Third Parties as required to perform the provision of Services; and
(b) make full and frank disclosures of all relevant facts and circumstances to the Supplier, to assist the Supplier with the provision of the Services.
6. Payment
6.1 The Customer must pay the Service Fee, Disbursements and any additional fees incurred under this Agreement in accordance with the Supplier’s tax invoice. Time for payment of the Service Fee shall be of the essence.
6.2 The Customer agrees to make payments by direct bank deposit or any other method as directed by the Supplier.
6.3 The Supplier requires the Customer to make full payment towards the Service Fee as specified in the Agreement.
6.4 Without prejudice to any other remedies the Supplier may have, if the Customer has not paid the Service Fee within seven (7) days of the due date of payment, the Supplier may immediately without notice suspend or terminate the Services. The Supplier will not be liable to the Customer for any loss or damage the Customer suffers because the Supplier has exercised its rights under this clause.
6.5 If the Customer defaults in payment of any invoice when due, the Customer agrees to indemnify the Supplier from and against all costs and disbursements incurred by the Supplier in pursuing the debt including legal costs on a solicitor and own client basis.
6.6 Any fees paid by the Customer to the Supplier are non-refundable except as required by law and the Customer is responsible for providing complete and accurate billing and contact information to the Supplier.
6.7 The Supplier may revise the fees by providing the Customer at least thirty (30) days’ notice in writing.
7. GST
7.1 Unless otherwise stated, all amounts payable under this Agreement are expressed exclusive of GST.
7.2 The Customer must pay to the Supplier an additional amount equal to the prevailing GST rate, payable at the same time and in the same manner as the Service Fee.
8. Intellectual property
8.1 The parties agree that the Customer’s Intellectual Property Rights in materials supplied by the Customer to the Supplier will remain the property of the Customer.
9. Confidentiality
9.1 A party must not, without the prior written consent of the other, use or disclose the other party's Confidential Information unless expressly permitted by this Agreement or required to do so by law or any regulatory authority.
10. Warranties
10.1 The Customer warrants that:
(a) it has full power to execute and authorise its obligations under this Agreement;
(b) there are no actions, claims, proceedings or investigations pending or threatened against it which may have a material effect on this Agreement.
10.2 The Customer acknowledges and agrees that the Supplier makes no representation or warranty that:
(a) the Services provided will be error-free and free from defects;
(b) development and planning approvals will be granted by a Third Party;
(c) the Services will render the results in accordance with any prior representations made, or specifications provided, by the Supplier to the Customer prior to the date of this Agreement; or
(d) the Services will deliver the outcomes substantially in accordance with the Customer’s specifications.
11. Liability
11.1 The Supplier excludes all liability in respect of interruption of business or any consequential or incidental damages (including due to negligence) incurred by the Customer in relation to the provision of Services.
11.2 The Customer acknowledges and agrees that the Supplier is not liable for the following:
(a) Acts and/or omissions of a Third Party engaged by the Supplier to assist in the provision of Services which cause loss to the Customer;
(b) Failure of development and planning approvals by a Third Party;
(c) The imposition of conditional consent items or requests for additional information or reports by a Third Party;
(d) Time delays in the provision of the Services;
(e) Site conditions; and/or
(f) Amendments to the approval process.
11.3 To the full extent permitted by law, the Supplier excludes all representations or terms (whether express or implied) other than those expressly set out in this Agreement.
11.4 The Customer agrees that the Supplier's total aggregate liability for all claims relating to this Agreement is limited to the $100.00.
11.5 The Customer agrees to indemnify the Supplier in relation to all claims, actions, liabilities, costs and expenses (including legal costs on a full indemnity basis) resulting from the Supplier’s failure to comply with this Agreement.
11.6 The Customer agrees that it will continually indemnify the Supplier against any cost, loss, liability, or damage that the Supplier incurs as a result of the Customer’s use of the Services.
12. Termination
12.1 This Agreement may be terminated by written notice if:
(a) a material breach of this Agreement occurs which is not remediable.
(b) an insolvency event occurs.
(c) the Customer demonstrates rude or inappropriate behaviour.
13. Consequences of Termination
13.1 If this Agreement is terminated or expires for any reason, then, in addition and without prejudice to any other rights or remedies available:
(a) the parties are immediately released from their obligations under the Agreement.
(b) the Customer must immediately pay all outstanding Service Fee, Disbursements and other amounts owing.
14. Sub-contractors
14.1 The Supplier may appoint sub-contractors to perform the Services under this Agreement.
15. Notices
15.1 All notices must be in writing and can be given by:
(a) hand delivery during normal business hours;
(b) ordinary post;
(c) registered post;
(d) electronic mail.
16. General provisions
16.1 The Customer must not assign or otherwise deal in any other way with any of its rights under this Agreement without the prior written consent of the Supplier.
16.2 Nothing contained in this Agreement creates any relationship of partnership or agency between the parties.
16.3 If a provision of this Agreement is invalid or unenforceable it is to be read down or severed to the extent necessary without affecting the validity or enforceability of the remaining provisions.
16.4 Each party must at its own expense do everything reasonably necessary to give full effect to this Agreement and the events contemplated by it.
16.5 This Agreement (and any documents executed in connection with it) is the entire Agreement of the parties about its subject matter and supersedes all other representations, arrangements or agreements. Other than as expressly set out in this Agreement, no party has relied on any representation made by or on behalf of the other.
16.6 This Agreement may be amended only by a document signed by all parties and in accordance with the terms of this Agreement.
16.7 This Agreement may be executed in counterparts which will be taken together to constitute one document.
16.8 The supplier will not be responsible for a failure to comply with its obligations under this Agreement to the extent that failure is caused by a Force Majeure Event.
16.9 Without limiting any other right to terminate under this Agreement, if a Force Majeure Event affects this Agreement for more than thirty (30) consecutive days, the other party may terminate this Agreement by written notice.
16.10 All stamp duties and other government charges in relation to this Agreement must be paid by the Customer.
16.11 This Agreement is governed by the laws of New South Wales.