1. The goods and/or services that Industry Compete provides to you are described in the Agreement Terms.
2. Each Agreement Term sets out the scope of the goods and/or services, the fees for the goods and/or services, and any other specific or special conditions that apply to the goods and/or services.
3. Goods and/or services can be inclusive of software designed, developed and delivered to you, along with associated license fees.
2. Goods and/or Services Contract
4. If you accept a Industry Compete Quotation in writing, a binding contract is created. This contract comprises:
a. the Agreement Terms, inclusive of any specific or special conditions
b. the Industry Compete Quotation
c. these General Terms and Conditions.
5. Each goods and/or services contract is a separate and independent contract.
6. In the event of a dispute between the parts of the goods and/or services contract the order of priority is:
a. any specific and special conditions in the Agreement Terms
b. the remaining Agreement Terms
c. the Industry Compete Quotation
d. the General Terms and Conditions.
7. For each Contract, we will provide you with the goods and/or services specified in the relevant Agreement Term.
8. The fee for a goods and/or services are:
a. specified in the Agreement Terms, or
b. the Quotation fees apply.
9. Fees may be adjusted at any time by Industry Compete except where we have an agreed fixed fee for goods and/or services.
10. If Industry Compete performs any work for you that is not covered by the Agreement Terms, we may charge for that work
a. at our current published rate, or
b. if there are no current published rates, our time and materials rates for similar work, or
c. the last Quotation accepted by you.
4. Pre-Paid Fees
11. If the Agreement Terms require pre-paid fees:
a. goods and/or services will not be provided until you pay the pre-paid fees
b. Industry Compete may suspend providing the goods and/or services if the balance of the pre-paid fees will not cover our fees for the service required
c. Industry Compete may apply amounts owed to us by you against the balance of your pre-paid fees in the manner that we decide
12. Pre-paid fees are not refundable.
13. You must reimburse Industry Compete for out of pocket expenses conditional on:
a. the expenses being approved in writing, and
b. Industry Compete provides reasonable evidence substantiating the expense.
6. Invoicing and Payment
14. Industry Compete will invoice you:
a. in accordance with any payment schedule specified in the Agreement Terms
a. that outlined in the agreed and authorised Quotation
c. in advance for pre-paid fees.
15. You must pay each invoice in full by the due date specified in the invoice, or 14 days of the invoice date if not specified.
16. Invoices, where appropriate, will be inclusive of any applicable tax, levy, charge or impost implemented under the law or Act.
17. Late invoicing does not affect Industry Compete right to payment for work carried out or goods and/or services provided to you.
18. If payment is overdue, in addition to our other rights:
a. we may charge interest on the overdue amount at a Default Rate calculated daily at 2.5% per calendar month
b. overdue payments are inclusive of any applicable tax
c. we may withhold providing goods and/or services under any contract
d. you indemnify Industry Compete against all costs and expenses, including legal expenses, incurred by us in efforts to recover overdue amount(s).
19. Industry Compete may terminate this agreement or any contract with you immediately by notice in writing if:
a. you fail to pay any amount, whether in whole or part, payable in respect of goods and/or services 14 days past the time for payment as specified
b. you breach any other terms of this agreement or other contract and the breach is not remedied with 14 days of written notice by us to you
c. you cease or threaten to cease conducting your normal business
d. the goods and/or services contract between us is terminated, or becomes terminable by us with reasonable cause.
20. You will provide Industry Compete with unrestricted access so we may enter the premises where good(s) / hardware(s) / equipment(s) / software(s) are located and take possession of (in the case of software(s) uninstall) the good(s) / hardware(s) / equipment(s) / software(s) not paid for. Our permission to enter your premises is irrevocable.
21. Industry Compete is not liable to you in contract, tort, or otherwise, for any costs, damages, expenses or losses incurred by you as result of any action taken by us under this clause.
22. Either party may terminate this agreement or any contract immediately if an order is made or resolution is passed or an application made for the cessation of trading of the other party (otherwise for the purpose of reconstruction or amalgamation) or the party becomes insolvent as defined by the current Corporations Act.
8. Termination for Non-Performance
23. You may terminate the goods and/or services contract with Industry Compete if we breach a agreement and fail to remedy the breach within 14 days after receiving a notice detailing the breach and requiring that it be cured.
24. If you terminate an agreement with Industry Compete prior to its completion as per the previous clause then no termination fee will be payable.
25. Termination of an agreement does not affect Industry Compete rights of action based on any breach by you before the termination and is without prejudice to any other rights we may have to recover moneys form you.
26. On termination we may retain all moneys paid to us under the agreement.
9. Third Party Charges
27. In provision of any goods and/or services we may incur third party charges which may be included in Agreement Terms, unless specified by us in writing.
28. Where Industry Compete specify in our Agreement Terms, Quotations, or other agreements, we may increase our fees by written notice to you if there is an increase in third party charges.
29. You are responsible for third party charges incurred as result of your use of goods and/or services unless Industry Compete specify in writing.
10. Goods and/or Services Delivery
30. Industry Compete will provide goods and/or services:
a. during normal and reasonable business hours, unless specified in writing
b. at the location(s) specified in the Agreement Terms, or if no location is specified , at the location Industry Competedetermine to be most suitable or appropriate
c. with appropriately skill and qualified personnel.
31. Business hours are considered to be between 8:00am and 6:00pm in Melbourne, Victoria, Monday to Friday, excluding public holidays at the place in which the goods and/or services are to be provided.
Standard of Goods and/or Services
32. Industry Compete does not warrant that the goods and/or services provided will be uninterrupted.
33. If goods and/or services levels or specifications are specified in the Agreement Terms, or Quotation, we will use all reasonable efforts to meet or exceed the required levels or specifications.
34. If the Agreement Terms specify that credits or rebates will apply for failure to meet goods and/or services levels or specifications, this is your sole remedy.
35. If and when required you agree to provide Industry Compete with reasonable and timely access to your premises, facilities, equipment, network, data, personnel and information to enable us to fulfill our obligations under the Agreement Terms.
36. Industry Compete will not be held responsible for any delay in providing goods and/or services where delay results from your failure to provide timely access to carry out the work.
12. Your Obligations
37. You must:
a. comply with Industry Compete reasonable and lawful directions in relation to the provision of goods and/or services
b. provide a safe working environment for Industry Compete personnel, agents, contractors and representatives
c. comply with all laws, regulations, policies and guidelines (including any acceptable use policy that we inform you of) applicable to the goods and/or services
d. ensure that any incumbent provider who is transitioning information, data, resources, and facilities required by Industry Compete to provide the goods and/or services
e. maintain regular and complete backups of all your data and information.
38. Industry Compete will not be responsible for any failure, default, or delay to the extent caused your failure to perform your obligations.
13. Equipment / Hardware Supply
39. To the extent that the goods and/or services is for the sale of equipment / hardware
a. the risk of loss or damage to the hardware passes to you upon delivery, and your obligation to insure the equipment / hardware commences when risk passes to you
b. You must insure the equipment / hardware for its full value and ensure that our interest is noted (we may require you to confirm compliance with this requirement including providing a copy of the insurance policy)
c. Industry Compete remains the legal and beneficial owner of all equipment / hardware sold by us to you under these General Terms and Conditions until all amounts due in respect of all hardware and any other amounts you owe to us, actually or contingently present or in future, have been paid to us in cleared funds (this applies even if you have installed the equipment / hardware in conjunction with other goods)
d. You must not sell, dispose, assign or encumber the equipment / hardware unless and until you have paid for in full
e. Where the equipment / hardware manufacture’s warrant is capable if being assigned to you, it is the warranty given in relation to the equipment / hardware, to the extent permitted by law
f. You take full responsibility for the use, operation, and maintenance of the equipment / hardware unless expressly agreed by us in writing or as part of the Agreement Terms or Quotation.
14. Equipment / Hardware Leasing
40. To the extent that the goods and/or services is for the leasing of equipment / hardware
a. Industry Compete own the equipment / hardware and is leased, not sold to you
b. You must not do anything which is contrary to or prejudices the ownership by Industry Compete of the leased equipment /
c. You must insure the leased equipment / hardware for its full replacement value and keep it secured and safe from damage or loss
d. The leased equipment / hardware must only be used in accordance with the manufactures instructions and guidelines and at Industry Compete reasonable directions
e. At the expiry of the lease term you must return the leased equipment / hardware to Industry Compete along with associated parts and accessories
f. If the lease is for a lease to buy, this will be outlined and specified in the Agreement Terms or Quotation
g. If the lease is a lease-to-buy you will become the full unencumbered owner of the hardware / equipment upon the last payment for the lease-to-buy equipment / hardware
h. If the leased (or lease-to-buy) equipment / hardware is lost, damaged or destroyed, you must promptly notify Industry Compete of the loss or damage, you must pay us the cost of repairing or replacing the equipment / hardware, and your obligation to pay the fees in respect of the leased (or lease-to-buy) equipment / hardware is absolute and continues notwithstanding its loss, destruction or damage or the termination of the goods and/or services contract
i. Industry Compete may retake possession of the equipment / hardware if you breach the agreement, or Industry Compete reasonable believe we need to do so to protect out title to the equipment / hardware, and you irrevocably authorise us to enter your premises for this purpose.
15. Loan Equipment / Hardware
41. Industry Compete may install on your premises (with your permission) loan, or otherwise provide you with, equipment.
42. All loan equipment / hardware:
a. remains the property of Industry Compete
b. must only be used by you for the purpose of receiving goods and/or services from Industry Compete
c. must be kept secure for loss or damage.
43. If any loan equipment / hardware is lost, damaged, or stolen:
a. you must notify Industry Compete without any reasonable delay
b. you must pay Industry Compete the replacement cost of the Loan Equipment / Hardware at the recommended retail price at the time the Loan Equipment / Hardware was lost, damaged, or stolen, less any amount recovered under the required insurance policy.
16. Inspection and Insurance of Equipment / Hardware
44. You must allow Industry Compete to enter your premise(s) to inspect any equipment / hardware that is classed as leased, lease-to-buy, or loan in your possession given reasonable notice from time to time.
45. If any equipment / hardware of any type or class belonging to us is sold or otherwise disposed of by you, or any insurance claim is made in respect of it, Industry Compete is entitled to trace and receive the sale or insurance proceeds. You must notify us of all insurance claims made by you in respect of the equipment / hardware.
46. You must reimburse to Industry Compete to us all costs, inclusive of management time, incurred by us in exercising our rights under this clause.
47. To the extent that a goods and/or services involves the supply, development / creation or licensing of software that Industry Compete is the owner
a. Industry Compete warrant that our software goods and/or services will operate substantially in accordance with its outlined design and requirement during the warranty period
b. Industry Compete will use all reasonable efforts to correct any defects provided
i. You notify Industry Compete of the defect during the warranty period
ii.You have used the software in accordance with its design and developed use
iii. The software has not been used on or in conjunction with equipment, hardware, or software not approved by us
iv. The software has not been modified in any way by anyone other than us
v. The defect is not due to a change or alteration in your information technology or physical environment after deliver of the software
vi. You are not in breach of this agreement or a Industry Compete contract
c. Warranty period means thirty (30) days from the delivery of the software, unless Industry Compete specify differently
d. Defect means a reproducible failure of the software to work substantially described in the goods and/or services design and development requirement(s).
18. Software License and Fees
48. Software and/or firmware (collectively known as Software) supplied, developed and/or delivered to you is licensed, not sold. Industry Compete grants to you a non-exclusive, non-transferable license to use the Software, and only in the manner and purpose for which the Software is designed. Industry Compete will not deliver any source code to you, unless agreed prior in writing with a minimum Intellectual Property rights transfer fee of 20,000 US Dollars.
49. You or any associated representative shall not adapt, modify, translate, reverse engineer, decompile, disassemble or create a derivative work based upon the Software. The only exception is where such activity is expressly permitted by applicable law not withstanding this limitation.
50. You shall not make any or distribute unauthorised copies of the Software, and shall acquire no rights or ownership in the Software.
51. Title to, and ownership, of the Software and all its extensions, enhancements, developments and modifications remain at all time with Industry Compete or its licensor, unless specified in writing to you in the Agreement Terms or Quotation.
52. You must pay Industry Compete the fee(s) by the due date for payment on the invoice issued by us to you, and in accordance with the requirements set out in the Agreement Terms and/or Quotation.
19. Intellectual Property
53. Where Industry Compete has designed and/or developed goods and/or services for you, then the copyright in those designs and developments shall remain vested in Industry Compete, and shall only be used by you at our discretion.
54. Conversely, where you have provided goods and/or services design and/or development information, Industry Compete in its General Terms and Conditions may look for an indemnity of the specifications and design of the goods and/or services, including the copyright, design right or other intellectual property in them, shall as between the parties be the property of Industry Compete.
55. Where any designs, or specifications have been supplied by you for goods and/or services development or modification, by or to the order of Industry Compete, then you warrant that the use of the designs and specifications shall not infringe the rights of any third party.
20. Third Party Materials License
56. In providing goods and/or services Industry Compete may supply you materials, inclusive of software, licensed by third parties.
57. You must comply with the terms of the third party license and you indemnify Industry Compete against any loss, damage, claim, liability or demand we incur due to your breach of a third party license.
58. Industry Compete will use reasonable efforts to meet deadlines, milestone or other timeliness related requirements we have committed to.
59. Industry Compete will not be liable to any delay or failure to meet these where our service is impaired by you, a third party, a failure or defect (not caused by us) in hardware or software (not supplied by us), or an event beyond our control, then Industry Compete obligation to provide the goods and/or services is suspended, we will not be liable to you in respect of ay delay or failure to provide the goods and/or services.
60. Where Industry Compete are delayed from performing the requirements of the goods and/or services due to a delay you cause, we may invoice you those personnel’s commercial rate for the delay subject to us making reasonable efforts to redeploy the personnel to other commercially chargeable duties.
61. Industry Compete and you, herein referred to as the Party(s), must keep each other’s Confidential Information confidential.
62. Each Party must keep the other Party’s Confidential Information confidential.
63. A Party may only use the other Party’s Confidential Information for the purposes of this Agreement and disclose that information to its personnel to the extent that they need to know the Confidential Information for the purposes of this Agreement and are under an obligation to keep it confidential.
64. Each Party must take all steps reasonable to prevent any actual or potential breach of that direction.
65. Each party must exercise the same degree of care and diligence in protecting the confidentiality of the other Party’s Confidential Information as it exercises in relation to its own Confidential Information.
66. Upon request of one Party to the other Party of this Agreement, will immediately, unless otherwise required by law, return or destroy all Confidential Information made available including, but not limited to documents and media without retaining any copies, notes, or extracts.
23. Limitation of Liability
67. Industry Compete aggregate liability arising from or relating to your use of the goods and/or services is limited to the total of all payments made by you for the relevant goods and/or services under the Agreement Terms.
68. Neither Industry Compete, nor any of its software licensors, or personnel, shall be liable for any claim where, for the purposes of this agreement claim means
a. Loss, or consequential loss, of use of the goods and/or services, loss of data and information, costs of recreating lost data and information, or the costs of any substitute goods and/or services
b. any claim, counter-claim, cross-claim, demand, action, proceeding or legal process
c. consequential loss means any indirect, special, economic or consequential loss or damage or loss of revenue, profits, goodwill, bargain or opportunities or loss or corruption of data or loss of anticipated savings that you incur or suffer in any way, whether causes by our negligence or whether we should have known of the possibility of such loss or damage.
69. Exclusion of implied terms and limitation of liability, subject to rights under law
a. any representation, warranty, condition, guarantee or undertaking that would be implied in these terms by legislation, common law, equity, trade, custom or usage or otherwise is excluded to the fullest extend permitted by law
b. Industry Compete does not warrant or represent the performance, accuracy, reliability or continued availability of goods and/or services or that they will be free from faults, errors or interruptions.
24. Warranty and Indemnity
70. You warrant that you have not relied on any representation made by Industry Compete which has not been stated expressly in these General Terms and Conditions.
71. You must indemnify Industry Compete, long with its employees, agents, partners, representatives and contractors (collectively ‘us’) against any loss (including reasonable legal costs and expenses) or liability any of us reasonably incurs or suffers arising from any proceedings where such loss is caused by your breach of these General Terms and Conditions or your willful, unlawful or negligent act or omission.
72. All notices must be in writing by the relevant party’s authorised representative and sent to the party’s service address.
73. A party’s service address can be a corporations registered address, the primary business address, or other address a party nominates which can include a specified email address (conditional on being sent by an authorised person / individual), by written notice to the other party.
74. Industry Compete is an independent contractor and have no authority to bind you by contract or otherwise.
75. Industry Compete may sub-contract the performance of this agreement if we can obtain your prior consent, which you may not unreasonably withhold.
76. Industry Compete may assign or novate our rights and obligations under this agreement at any time.
77. You may not assign your rights and obligations under this agreement without prior knowledge written consent, which we will not unreasonable withhold.
78. If a party overlooks a breach of a goods and/or services agreement by the other party on one or more occasions, it is not taken to have agreed to any future breach.
79. If any of the terms or provisions of this Agreement are or become invalid or unforeseeable then they shall be deemed severable and all other terms and conditions shall remain in full force and effect.
80. Industry Compete reserves the right to review these General Terms and Conditions at any time and from time to time.
81. Industry Compete nor you will be liable for any default due to an act of God, war, terrorism, strike, lock out, industrial action, fire, flood, drought, storm or other event beyond control of the Parties.
82. These General Terms and Conditions, the Agreement Term, Quotation, and other Industry Compete documentation are the entire goods and/or services agreement between the parties with respect to the goods and/or services specified and supplied and all other agreements regarding those goods and/or services are superseded. No amendment or modification of a goods and/or services contract is binding unless in writing and executed by the parties.
83. Anything that is unforeseen must be read down, to the point of severance if necessary.
84. Anything a party may do, it may do through an appropriately authorised representative.
26. Applicable Law and Disputes
85. This agreement is subject to the laws that apply in the State of Victoria in the Commonwealth of Australia.
86. Any dispute of difference arising in connection with this agreement will be submitted to arbitration in accordance with and subject to the Institute of Arbitrators and Mediators Australia Expedited Commercial Arbitration Rules.
87. Otherwise, legal proceedings relating to this Agreement or any dispute about it must be brought in the courts of the State of Victoria in the Commonwealth of Australia.
88. Headings are for navigational assistance only and do not affect the meaning of this agreement.
89. Where a term is said to ‘include’ one or more things, the list is not exhaustive and does not limit the natural meaning of the term in any way.
90. Any attachment to a document (including a quotation, attachment or schedule to this agreement) is part of that document, as is any document incorporated by reference.
91. A reference to a singular includes the plural and visa versa.
92. There is no significance in the use of gender specific language.
93. A ‘person’ includes any entity which can sue and be sued and any legal successor to or representative of that person.
94. A reference to lease and/or loan equipment / hardware includes all information technology products and equipment including hardware, software and related parts, accessories and other goods.
95. A reference to law includes any amendment or replacement of that law.
96. A provision must not be construed to the disadvantage of a party because that party prepared or required it.