Terms and Conditions of Business
1.
DEFINITIONS AND INTERPRETATION
1.1
Definitions
“Service Provider”
means BIReady Pty Ltd trading as BIReady Australia.
“Customer”
means any organisation or entity purchasing products or services from the Service Provider.
“Confidential
Information”
means
the
terms
of
this
Agreement
and
of
any
other
agreement
between
Service
Provider
and
the
Customer,
any
software
(including
source
code),
all
documentation,
information
relating
to
the
business
or
financial
affairs
of
either
party
or
the
Customer's
customers
and
any
information,
document
or
item
which
is
designated
by
either
party
as
confidential
or
relates
to
Service
Provider
or
the
Customer
and
is
not
in
the
public domain;
“GST Act”
means A New Tax System (Goods and Services Tax) Act 1999 and related legislation and/or regulations;
“Intellectual Property Rights”
means copyright, trade mark, design, patent, trade secret, Confidential Information, semiconductor or circuit layout rights;
“Proprietary Software”
means all software owned, licensed or developed prior to or outside of the scope of the Services by Service Provider;
“Services”
means the services specified in Schedule 1.
“Service Fee”
means the service fee specified Schedule 1.
“Standard Rates”
means rates charged by Service Provider for the provisions of Services pursuant to this Agreement, as varied from time to time by notice to the Customer.
1.2
Interpretation
The parties acknowledge and agree that business may be undertaken by the electronic exchange of information and the provisions of this Agreement will be read and construed to give effect thereto.
2.
SERVICE PROVIDER'S OBLIGATIONS
Service Provider agrees to supply the Services to the Customer as set out in Schedule 1 and according to the conditions of this Agreement.
3.
CUSTOMER’S OBLIGATIONS
3.1
The
Customer
acknowledges
that
Service
Provider
in
providing
services
is
acting
at
the
Customer’s
direction.
Where
a
design
statement
or
specifications
are
agreed
by
the
parties
the
Customer
must
determine
whether
they
will meet the Customer’s business requirements, Service Provider cannot advise in this regard.
3.2
The
Customer
warrants
that
they
have
implemented,
tested
and
currently
adhere
to
professionally
accepted
backup,
disaster
recovery,
support
and
maintenance
systems
and
are
satisfied
that
these
systems
reflect
the
importance of the data maintained. Customer agrees to indemnify Service Provider from any loss resulting from the failure to maintain suitable data recovery systems.
4.
PAYMENT
4.1
Payment/Invoices
The
Customer
will
promptly
pay
the
Service
Fee
for
Services
to
Service
Provider
upon
the
dates
set
out
in
this
Agreement
(Schedule
1)
and
if
not
so
specified
then
14
days
in
arrears.
Invoices
will
be
sent
weekly
as
the
services
are
provided.
4.2
Service Fees & Expenses
Unless
otherwise
stated
in
Schedule
1,
“Day”
means
an
8.0
hour
day
between
9.00
am
and
5.30
pm,
excluding
weekends
and
public
holidays.
The
hourly
rate
is
the
daily
rate
divided
by
8.0.
Customer
will
pay
the
hourly
rate
in
addition
to
the
daily
rate
for
any
Services
performed
in
excess
of
9
hours
in
a
day.
Customer
will
pay
the
hourly
rate
instead
of
the
daily
rate
for
any
Services
performed
in
less
than
8.0
hours
in
a
day.
Hourly
Rates
are
subject
to
a
minimum purchase of 2 hours. Customer will reimburse the Service Provider at cost for expenses reasonably incurred in the course of providing the Services.
4.3
Interest on Overdue Amounts
If
any
amount
payable
to
Service
Provider
under
this
Agreement
has
not
been
paid
by
the
Customer
within
14
days
of
the
due
date
for
payment,
Service
Provider
may
charge
interest
on
the
amount
outstanding
(at
the
current
rate
of
penalty
interest
prescribed
by
the
Penalty
Interest
Rate
Act
of
1983
or
the
highest
amount
permitted
by
law)
from
the
due
date
for
payment
until
such
time
as
full
payment
of
the
outstanding
amount
is
made
by
the
Customer; and suspend performance of this Agreement until paid in full, provided Service Provider gives the Customer at least 14 days written notice.
4.4 Prepayment of Services
On
occasion,
the
Service
Provider
may
offer
the
Customer
the
opportunity
of
paying
for
services
in
advance
at
a
discounted
rate.
All
prepaid
days
purchased
must
be
used
within
twelve
months
of
the
purchase
date,
at
which
point any unused days are deemed to have expired. No refunds will be given for expired days.
5.
INTELLECTUAL PROPERTY
Upon
receipt
by
Service
Provider
of
payment
in
full
of
the
Service
Fee,
and
any
additional
charges,
Service
Provider
assigns
to
the
Customer
a
non-exclusive
royalty-free
perpetual
licence,
for
use
only
by
Customer,
to
all
software
and supporting documentation developed and delivered as part of the Services but excluding Proprietary Software.
6.
CONFIDENTIALITY
Except
as
required
by
law,
each
party
must
keep
confidential
and
not
disclose
without
the
prior
written
consent
of
the
other
party
any
and
all
Confidential
Information
to
any
person,
except
to
its
employees,
contractors
and
agents necessary for the purposes of this Agreement and who have first undertaken to keep the Confidential Information confidential and not to use it except for the purposes of this Agreement.
7.
LIABILITY
7.1
The
liability
of
Service
Provider
to
the
Customer
for
a
breach
of
this
Agreement
or
a
Contract
or
for
any
statutory
causes
of
action,
common
law
or
tort
(including
negligence)
in
any
way
arising
from
the
Contract
in
question
or
from this Agreement will be limited to the following extent:
(a)
Service
Provider
will
not
be
liable
for
any
direct
or
indirect
lost
profit
or
revenue,
exemplary
damages,
deletion
or
corruption
of
electronically
or
digitally
stored
information,
or
without
limiting
the
foregoing,
any
indirect
or
consequential loss or damage howsoever described or claimed;
7.2
The
Customer
will
indemnify
Service
Provider
and
keep
Service
Provider
indemnified
against
all
and
any
demands,
claims,
actions
and
proceedings
whatsoever
and
howsoever
arising
made
by
any
third
person
in
connection
with
or
arising
out
of
the
Customer's
use
of
the
Services
and
all
and
any
losses,
costs,
expenses
and
damages
whatsoever
and
howsoever
incurred
by
Service
Provider
in
connection
with
or
arising
out
of
a
breach
by
the
Customer
of any provision of this Agreement, provided the service provider has not been negligent or contributed to the loss or breach.
7.3
Nothing
in
this
Agreement
excludes,
restricts
or
modifies
any
condition,
warranty,
right
or
remedy
which
is
conferred
on
the
Customer
by
the
Acts.
Where
Service
Provider
breaches
a
condition
or
warranty
which
has
been
implied by the Acts, its liability for breach will be limited to (where permissible by the Acts):
(a)
in
the
case
of
the
supply
of
goods:
the
replacement
of
the
goods
or
the
supply
of
equivalent
goods,
or
the
repair
of
the
goods,
or
the
payment
of
the
cost
of
replacing
the
goods
or
of
acquiring
equivalent
goods,
or
the
payment of the cost of having the goods repaired; and
(b) in the case of the provision of services: the supplying of the services again, or the payment of the cost of having the services supplied again;
whichever Service Provider sees fit to provide.
7.4
The rights and remedies which the Customer has under this Agreement are in addition to all the rights and remedies which it has under the Acts.
8.
TERMINATION
8.1
Termination by Service Provider
Service Provider or Customer in its discretion may upon 1 weeks notice in writing terminate this Agreement.
8.2
Consequences of Termination
(a) If Service Provider terminates this Agreement in accordance with clause 8.1, the Customer will remain liable to pay Service Provider for Services rendered up to the date of termination.
(b) Upon the termination or expiry of this Agreement for any reason, the Customer must return to Service Provider all the Confidential Information or, if it is not capable of return, destroy it.
(c)
If
Customer
terminates
this
Agreement
in
accordance
with
clause
8.1,
Customer
must
pay
Service
Provider,
or
redeem
prepaid
Services
credits
for,
the
following
cancellation
fee
if
Customer
cancels
a
confirmed
Services
booking without giving Service Provider at least 5 business days written (including email) cancellation notice before the scheduled Services start date:
' 0 - 1 business day before start date: 75% of the fees for the Services cancelled
' 2 - 5 business days before start date: 50% of the fees for the Services cancelled
8.3
Survival of Obligations
Clauses
6,
7
and
4.2
will
survive
expiration
or
termination
of
this
Agreement
and
will
continue
to
the
benefit
of
and
be
enforceable
by
Service
Provider.
Nothing
in
clause
7
shall
limit
a
party’s
rights
to
obtain
urgent,
interlocutory
or equitable relief including without limitation injunctive relief.
9.
GENERAL
9.1
The failure of either party to insist upon a strict performance of any of the terms of this Agreement will not be deemed a waiver of any subsequent breach or default in the terms of this Agreement.
9.2
Each party will promptly execute all documents and do all things that the other party reasonably requires of it to give effect to the provisions of this Agreement and the transactions contemplated by it.
9.3
Each provision of this Agreement is severable from the others and no severance of a provision will affect any other provision.
9.4
This Agreement is governed by and will be construed in accordance with the laws of New South Wales. The parties irrevocably and unconditionally submit to the non-exclusive jurisdiction of the courts of New South Wales.
9.5
The Customer will not assign any of its rights, benefits or obligations under this Agreement.
9.6
This document embodies the entire understanding and agreement between the parties as to the subject matter of this Agreement. The Schedule will prevail over any Annexure to the extent of any inconsistency.
10.
TAXES
Unless
expressly
stated
to
the
contrary,
all
fees,
costs
and
charges
referred
to
in
this
Agreement
are
exclusive
of
all
taxes,
duties
and
imposts.
If
Service
Provider
is
or
will
be
liable
for
any
taxes,
duties
or
imposts
(including
GST)
on
or
relating
to
this
Agreement
or
anything
done
pursuant
to
this
Agreement
(excluding
income
tax)
then
the
Customer
will
pay
Service
Provider
an
amount
equal
to
that
liability
at
the
time
that
it
pays
any
fees,
costs
or
charges
to which the liability relates.
11.
PROMOTION
The Customer may agree to participate in promotional videos or other materials that refer to the success of projects carried out by the Service Provider.
12.
EXPORT
The
Customer
will
obtain
all
consents
and
licences
as
may
be
required
from
time
to
time
under
local
laws
and
regulations
of
any
other
country,
including
but
not
limited
to,
the
Export
Administration
Regulations
of
the
United
States of America that might affect or regulate the product of those services.
13.
RECRUITMENT OF EMPLOYEES AND CONSULTANTS
13.1
During the term of this Agreement and for a period of 12 months following its termination the Customer shall not directly or indirectly do any of the following:
a
)
Solicit or encourage any employee or consultant of the Service Provider with whom the Customer has come into contact through this Agreement, to leave the employ of or cease work for the Service Provider.
b
)
Hire or contract any employee or consultant of the Service Provider with whom the Customer has come into contact through this Agreement
.
13.2
The
Customer
acknowledges
that
Service
Provider
invests
substantial
time
and
resources
in
its
staff
and
consultants
and
accordingly
the
Customer
agrees
that
in
the
event
that
it
breaches
clause
13.1,
it
will
pay
Service
Provider
its
loss
and
damage
which
the
parties
estimate
is
six
months
average
income
of
that
employee
or
consultant
when
last
working
with
the
Service
Provider,
and
the
Customer
agrees
to
pay
that
amount
as
liquidated
damages.
14.
AGREEMENT
This Agreement is construed under and subject to the laws of New South Wales, Australia.
BIReady Australia
BIReady Pty Ltd
143 Aiken Road,
West Pennant Hills NSW 2125
Australia
Email info@biready.com.au
Telephone +61 (0)2 8880 5111
www.biready.com.au
ABN : 57 167 132 112
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Management solutions. As such, our solutions and services offer advanced expertise
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