General Terms & Conditions
In these General Terms & Conditions, a reference to “Us” “We” or “Our” is a reference to TrinityP3 Pty Ltd and a reference to “You” or “Your” is a reference to the party to whom the Proposal is addressed.
1.1 These General Terms & Conditions are part of Our proposal to You (“Proposal”) to provide You with the services described in the Proposal (“Services”).
1.2 When You ask Us to proceed in accordance with the Proposal You accept the terms contained in the Proposal and these General Terms & Conditions, which, together, constitute the entire agreement between You and Us in respect of the Services (“Contract”).
1.3 The Contract commences when You ask Us to proceed in accordance with the Proposal continues until the responsibilities of all parties under the Contract have been fulfilled or it is terminated in accordance with this clause. Any Services We complete on Your behalf prior to providing you with Our Proposal are also covered by this Contract.
1.4 This Contract may be terminated by You or Us:
(a) with immediate effect if the other party commits a material breach of any term of this Contract, or has become subject to any law relating to bankruptcy or insolvency, or ceases to carry on business, or any of these events appear reasonably likely; and
(b) on thirty (30) days written notice.
You must pay Us for all Services We provide to You up to the date of termination and any additional expenses We reasonably incur as a result of Your early termination of this Contract.
2. Our Responsibilities
2.1 We will provide You with the Services and deliver to You the proposed outcomes identified in the Proposal (“Proposed Outcomes”).
2.2 Where the Proposal includes a timetable for delivery of the Proposed Outcomes We will use reasonable efforts to comply with the timetable. You agree that any such timetable is not contractually binding and is only intended for planning and estimating purposes.
2.3 We will make available the individuals (if any) listed in the Proposal to provide the Services. Where a listed individual is not available We will provide a substitute individual of similar qualification.
3. Your Responsibilities
3.1 By accepting the Proposal You confirm that the definition and scope of the Services and Proposed Outcomes included in the Proposal are sufficient to meet Your requirements and that You are responsible for the results to be achieved from using the Services and any Proposed Outcomes.
3.2 You agree that:
(a) all the information You have given to Us, or will provide to us, is or will be true, accurate and not misleading in any material respect. We will rely on and not verify the accuracy and completeness of such information; and
(b) You are solely responsible for any of Your or any third party’s software that You supply to Us or require that We use,
You agree further that We are not liable for loss or damage that You or any other person sustains, directly or indirectly, in connection with Our reliance on such information or software.
3.3 You must:
(a) provide to Us all necessary office space, accommodation or workspace facilities that We reasonably require;
(b) ensure that You have appropriate security, back-up and virus-checking procedures in place for any computer facilities, information or materials You provide;
(c) provide all information, materials and other assistance that We reasonably require in a timely and prompt manner; and
(d) make available to Us all of Your staff members who can provide Us with any necessary assistance and consultation that We reasonably require.
3.4 You acknowledge and agree that:
(a) Our performance under this Contract depends on You carrying out Your responsibilities. Any timetable or cost estimate We provide to You in the Proposal is dependant on the level of assistance and quality of information You provide to Us;
(b) We are not responsible for any delay or other consequence that results from Your failure to perform any of Your responsibilities under this Contact; and
(c) If You fail to satisfy Your responsibilities under this Contract We can revise any applicable timetable and cost estimate.
4. Terms of Payment
4.1 Any cost estimate We provide to You is a guide only and is not legally binding.
4.2 You must pay the costs set out in the Proposal including any fees for the Services and any related expenses and disbursements plus all taxes or charges related to this Contract or the performance of the Services.
4.3 We will provide You with an invoice at regular intervals or other such time as appropriate. You must pay the amount of the invoice within thirty (30) days of the date of the invoice. We reserve the right to charge a commercial rate of interest on accounts that remain outstanding for more thirty (30) days.
5.1 No party may disclose to any third party, without the prior written consent of the other party, any confidential information that is received from the other party for the purposes of providing or receiving the Services. However, You acknowledge and agree that We may disclose any information that You provide to Us in respect of the receipt or provision of the Services to any sub-contractor We engage to assist in the provision of the Services.
5.2 Each party must protect the confidential information of the other party with at least a reasonable degree of protection.
5.3 Both parties agree that any confidential information received from the other party will only be used for the purposes of providing or receiving the Services under this Contract, or any other agreement or contract between the parties.
5.4 The above restrictions do not apply to any information which:
(a) is, or becomes, generally available to the public other than as a result of a breach of this clause;
(b) is acquired form a third party who owes no obligation of confidence in respect of the information; or
(c) is or has been independently developed by the recipient or was known prior to receipt.
5.5 A party does not breach this clause by disclosing information to:
(a) any of its respective insurers or legal advisers;
(b) any third party to the extent that such disclosure is required pursuant to a legal right, duty or requirement, provided that, prior to disclosure, where reasonably practicable, the party required to make the disclosure gives the other party prior written notice of the requirement to disclose and detailing the information that will be disclosed.
6. Intellectual Property
6.1 All copyright and other intellectual property rights in any materials or software (written and machine-readable), proprietary methodologies, templates, forms, precedents, spreadsheets, data bases and other electronic tools created by or licensed by Us prior to this Contract and any subsequent modifications thereto (hereafter called the “Pre-Existing Works”), Our working papers and notes created for the purpose of the Proposal, during the provision of the Services and development of the Proposed Outcomes, and all Our confidential information remains vested with Us.
6.2 To the extent that any of Our intellectual property is contained in any Proposed Outcome delivered by Us to You, We grant to You a licence to use any of Our intellectual property provided that You comply with the terms of this clause and another other requirement We advise You of.
6.3 To the extent that any such Pre-Existing Works form part of any Proposed Outcome delivered by Us to You, You will have a non-exclusive, non-transferable licence to use the Pre-Existing Works for Your own internal use and only for the purpose for which they are delivered.
6.4 You agree not to provide any Pre-Existing Works or copies of them to any third party.
6.5 Nothing in this clause prevents or restricts Us from developing and/or using the Pre-Existing Works, Our confidential information, any ideas, concepts, know-how, information, techniques, inventions and improvements developed during the course of this engagement and relating to methods or processes of more general application, including those in the field of information technology and business processes, for Our own purposes or for other clients of ours.
6.6 Despite any other provision of these General Terms & Conditions, any software component of any Proposed Outcome delivered by Us to You is subject to the terms of any software license referred to in the Proposal or the relevant Proposed Outcome and You may use the software in accordance with the licence granted by Us to You pursuant to this clause.
7. Limitation of Liability
7.1 We are not liable to You for any consequential or indirect loss or loss of profits relating to, or arising from, the Services.
7.2 To the full extent permitted by law, Our liability to You for any claim whatsoever, is limited to Our choice of:
(a) providing the Services again; or
(b) paying the cost of having the Services supplied again.
7.3 We are not liable for any claim made by any third party for any loss, damage, cost or expense attributable to any act, omission or misrepresentation by You, Your directors, employees or agents.
7.4 To the full extent permitted by law, all warranties, conditions, representations and liabilities are excluded including any implied by statute. You agree and acknowledge that the Services and the Proposed Outcomes are for Your benefit only and it is not intended that any third party use or rely on them. Accordingly,
(a) You must not provide copies of any delivered Proposed Outcomes to any third party without Our prior written consent;
(b) We do not accept any liability or responsibility to any third party who benefits from the Services or makes use of, or receives, any Proposed Outcomes delivered by Us to You; and
7.5 You must indemnify Us against any liabilities, losses, expenses or other costs We reasonably incur in connection with any claim:
(a) bought against Us by a third party in relation to the Services or Proposed Outcomes; and
(b) made against Us as result of Your breach of the Contract,
except to the extent that any liabilities, losses, expenses or other costs related to any claim have resulted from the wilful misconduct or fraudulent behaviour of Us or Our employees.
8.1 If We engage any sub-contractor in connection with the Services We will ensure that We have an appropriate agreement with them.
8.2 If You require that We engage the services of a particular sub-contractor then You
accept responsibility for the work to be performed by such sub-contractor and You agree that We may require that Your subcontractor signs one of Our standard subcontractor agreements.
9.1 No party is liable to the other party for any delay or failure to fulfil its responsibilities under this Contract caused by circumstances beyond its reasonable control.
9.2 No party can novate, assign or transfer its rights under this Contract without the prior written consent of the other party.
9.3 The waiver or discharge of any term or condition of this Contract must be made in writing.
9.4 Any amendment or variation of this Contract must be made in writing and signed by all parties.
9.5 The provisions of this Contract that expressly, or by implication, are intended to survive the termination or expiry of this Contract will survive and continue to bind all parties.
9.6 Nothing in this Contract prevents Us from providing services to any other client.
9.7 During the term of this Contract, or within 3 months after its termination or expiration, neither party will directly, or indirectly, solicit for employment any of the other party’s employees who have been involved in providing or receiving the Services or the Proposed Outcomes or who are otherwise connected with this Contract, without the prior written consent of the other party.
9.8 Any provision of this Contract that is prohibited or unenforceable in any jurisdiction will be ineffective in that jurisdiction to the extent of the prohibition or unenforceability. That will not invalidate the remaining provisions of this Contract nor affect the validity or enforceability of that provision in any other jurisdiction.
9.9 The rights, duties and remedies granted or imposed under this Contract operate to the extent not excluded by law.
9.10 All conversations, representations and statements, not embodied in the Proposal or these General Terms & Conditions or not confirmed by Us in writing are expressly excluded and shall not be deemed part of the Contract and do not have any legal effect whatsoever.
9.11 The terms and provisions of the Proposal take precedence over the terms and provisions of these General Terms & Conditions.
9.12 This Contract is governed by the laws of the state of Australia and the parties submit to the non-exclusive jurisdiction of the courts of that state.
9.13 Any dispute between the parties arising Out of or under this Contract must first be referred to senior personnel of the parties who must attempt to negotiate a resolution in good faith. If, after five (5) business days, such negotiation fails to resolve any issue, the parties must refer their dispute to a mediator, failing agreement, appointed by the ISBA. However, nothing in this agreement prevents a party seeking urgent interlocutory relief in respect of a breach by the other party of its obligations in respect of confidential information or intellectual property.
9.14 The parties may contact and notify each other through electronic mail at a business e-mail address properly notified by the parties. Each party agrees to use commercially reasonable procedures to check for viruses and the integrity of data before sending mail or information electronically, however, the parties acknowledge that this procedure is not foolproof. Accordingly, the parties agree that it remains the responsibility of the receiving party to virus check incoming electronic mail and information.