In this Agreement unless the contrary intention appears:
Agreement means this Agreement as constituted by these terms and conditions and the Quote provided by Tri-Fixx.
Client means the party its subsidiaries and its successors and permitted assigns requesting the provision of Services from Tri-Fixx.
Confidential Information includes:
i. Information marked as confidential.
ii. Information which by its nature is confidential.
iii. Information provided by one party to the other pertaining to the Services including but not limited to the Price contained in a Quote.
Commencement Date means the date this Agreement commences being the date in which the Client accepts in writing the Quote provided by Tri-Fixx.
GST has the same meaning as in the A New Tax System (Goods and Services) Act 1999;
Intellectual Property Rights includes without limitation the protective rights attached to the inventions, patents, registered designs, trademarks, copyright, circuit layouts software and confidential information;
Personal Information means information or an opinion (including information or an opinion forming part of a database) whether true or not and whether recorded in a material form or not about an individual whose identity is apparent or can reasonably be ascertained from the information or opinion;
Material means all documents, data, design, drawings, software systems, processes, inventions, reports, databases, computer software, hardware and other information and other intellectual property in existence prior to the Commencement Date.
Price means the total price for the provision of the Services as specified in the Quote.
Privacy Laws means the national privacy principles set out in the Privacy Act 1988;
Quote means the quote provided by Tri-Fixx to the Client which the Client must accept in writing prior to the commencement of the provision of the Services.
Related Entity means any related body corporate as defined in the Corporations Act 2001;
Services the Services specified in the Quote and any subsequent agreed variations in writing
Tax Change means a change to tax, duties or levies to which the performance of the Services is subject but shall exclude taxes on Tri-Fixx’s net income;
Tax Invoice has the same meaning as in the A New Tax System (Goods and Services) Act 1999;
2.1 In this Agreement unless the contrary intention appears:
2.1.1 A reference to this Agreement or another instrument includes any variation of or replacement of either of them.
2.1.2 The singular includes the plural and vice versa.
2.1.3 The word “person” includes a film, and body corporate or an unincorporated association or authority.
2.1.4 A reference to a person includes a reference to the person’s executors, administrators, successors, substitutes (including but not limited to persons taking by novation) and assigns.
2.1.5 A reference to an annexure, attachment or schedule is a reference to an annexure, attachment or schedule to this Agreement.
2.1.6 A reference to this Agreement includes any Quote given by Tri-Fixx.
2.1.7 References to clauses and/or sub-clauses are references to sub clauses and clauses in this Agreement.
2.1.8 References to legislation include amendments, re-enactments or substantially similar provisions.
2.1.9 All derivatives of a defined expression shall be construed in accordance with its meaning as defined in clause.
3. Provision of Services
3.1 Tri-Fixx shall provide the Services as detailed in the Quote on the terms and conditions provided for in this Agreement.
3.2 The Client accepts and acknowledges that Tri-Fixx uses third party service providers for the provision of the Services.
3.3 The Agreement sets out the basis on which Tri-Fixx will provide the Services to the exclusion of all other terms and conditions.
If there is a conflict between the terms and conditions contained in this Agreement and any terms contained in a Quote then these terms and conditions shall prevail.
4. Price, Invoicing and Payment
4.1 The Client will pay Tri-Fixx the Price for the Services on the terms specified in this Agreement.
4.2 The Price is:
4.2.1 Subject to clause 4.3, the total price for the Services.
4.2.2 Exclusive of GST.
4.3 The parties agree that the Price may be varied if there is a Tax Change.
4.4 Tri-Fixx shall, at its discretion, invoice the Client either at the end of each month or on completion of the Services.
4.5 The Client will pay the Tax Invoice on or by the due date specified in the Tax Invoice.
4.6 If the Client fails to pay the Tax Invoice by the due date specified in the Tax Invoice, the Client shall pay interest at the rate of 2% above the then base lending rate of Commonwealth bank on any outstanding amount from the due date to the date that the Client makes the payment of the Price.
4.7 Tri-Fixx reserves the right to request payment of a deposit prior to the provision of the Services.
4.8 Notwithstanding any other clause in this Agreement, the parties agree that all Intellectual Property Rights created as a result of the Services shall be owned by Tri-Fixx until such time that the relevant invoice is paid in full.
5. Confidential Information
5.1 The parties agree that they will not, except as provided for in this Agreement or by law, disclose to any person any Confidential Information including Personal 5.2 Information of the Client or its personnel of which it has become possessed.
5.2 A party is not obliged by this clause to keep information confidential if that information:
5.2.1 Is trivial or obvious.
5.2.2 Was already in the receiving party’s possession at the time of receipt from the other party.
5.2.3 Has become public knowledge (other than through a breach of an obligation of confidence imposed under this Agreement).
5.2.4 Was published or otherwise becomes part of the public domain other through a breach of this Agreement by the disclosing party.
5.3 Clause 5 will survive the termination or expiry of this Agreement.
6.1 Without prejudice to either party’s rights under this Agreement, a party may terminate this Agreement by giving written notice to the other party upon occurrence of one of the following termination events:
6.1.1 Enters into liquidation.
6.1.2 No longer carries on business.
6.1.3 A receiver is appointed.
6.1.4 Failure to rectify material breach within 14 days, including a Client’s failure to pay the Price by the due date as
specified on the Tax Invoice.
6.1.5 Where for any reason this Agreement becomes void or unenforceable.
7. Client’s Warranties
7.1 The Client warrants that:
7.1.1 It shall pay the Price for the Services in accordance with the terms and conditions of this Agreement
7.1.2 It owns, has the right to handle and/or give direction regarding any drawings, information, document, process, software, Materials or the like provided to Tri-Fixx that contains Intellectual Property Rights.
7.1.3 It will not knowingly send to any representatives of Tri-Fixx or upload onto Tri-Fixx website any malicious files, viruses, trojans, worms, logic bombs or other material which is malicious or technologically harmful and if it accidentally does so, that it shall notify Tri-Fixx immediately.
7.1.4 It has all necessary authorisations and approvals required to process individual’s Personal Information and enable Tri-Fixx to do the same as required for the provision of the Services.
7.2 The Client warrants that it shall indemnify and hold Tri-Fixx harmless for any loss or damage Tri-Fixx may suffer as a result of a breach of any of the warranties contained in this clause.
7.3 Clause 7 will survive the termination or expiration of this Agreement.
8. Intellectual Property Rights
8.1 Subject to clause 4.8, each party shall retain all of its Intellectual Property Rights in Material which existed prior to the commencement of this Agreement.
8.2 Tri-Fixx grants whilst providing the Services to the Client a revocable, non-exclusive, royalty free license to use Tri-Fixx’s Intellectual Property and any developments or improvements thereto.
Each party shall agree to notify the other if it becomes aware of any suspected infringement of the other party’s Intellectual Property Rights under this Agreement.
9. Liabilities and Indemnities
9.1 Tri-Fixx shall (to the extent permitted by law) not be liable for any loss or damage however caused unless such loss or damaged is caused by the failure of Tri-Fixx to exercise reasonable care and skill in the provision of the Services.
9.2 If Tri-Fixx is ever proven to be liable, then such liability shall always be limited to the amount paid by the Client to Tri-Fixx for the Services completed in the relevant month in which the liability arose and as evidenced in the Tax Invoice sent by Tri-Fixx to the Client.
9.3 Each Indemnity in this Agreement is a continuing obligation separate and independent from any other obligation and survives the termination of this Agreement.
9.4 Neither party shall be liable to the other party in any circumstances for special, consequential, indirect or economic loss including but not limited to loss of revenue, loss of profit, loss of production, loss of business, loss of anticipated earnings, loss of the use or value of any data or the like.
9.5 Notwithstanding any other clause in this Agreement, the Client indemnifies Tri-Fixx from any loss or damage however caused if that loss or damage stems from a breach of any clause of this Agreement in particular a breach of a warranty regarding the use of a third party’s Intellectual Property Rights.
Tri-Fixx maintains its own professional indemnity insurance.
11.1 Tri-Fixx shall not disclose any Personal Information of the Client except as directed to do so by that person who’s Personal Information it is holding.
11.2 The Client warrants that it has complied with any relevant obligation imposed by the Privacy Laws, including providing all notices and obtaining all consents necessary to enable the compliant collection, handling and storing of Personal Information submitted to Tri-Fixx in accordance with its obligations under this Agreement.
12. Security of Information
Unfortunately, no data transmission over the Internet can be guaranteed as totally secure. Whilst we strive to protect such information, we do not warrant and cannot ensure the security of any information that you transmit to us. Accordingly, any information that you transmit to us is transmitted at your own risk. Nevertheless, once we receive your transmission, we will take reasonable steps to preserve the security of such information.
13. Dispute Resolution
13.1 If a dispute arises between the parties then a party shall provide written notice to the other clearly outlining the matter in dispute.
13.2 The parties shall attempt to in good faith to resolve the dispute.
13.3 If the parties are unable to resolve the dispute within 10 business days of the initial dispute notice, then personnel from each party shall where possible meet, or if that’s not possible, arrange for a meeting to resolve the dispute.
13.4 If the matter in dispute is not resolved by mediation then that dispute shall be referred to an independent expert agreed upon by the parties and if the parties do not agree on an independent expert within 7 days (or such other later date as is agreed) of the expiration of the said mediation then an independent expert shall be nominated by the person at the time being of the Law Institute of Victoria with the appropriate expertise.
13.5 The independent expert is to act as independent expert and not as an arbitrator and shall have the power to recommend and assess damages and costs.
13.6 The hearing by the independent expert is to be conducted according to the guidelines determined by the independent expert.
13.7 Pending resolution of any dispute, the parties will continue to perform their obligations under this Agreement without prejudice to their respective rights and remedies.
14. Force Majeure
Tri-Fixx shall not be liable to the Client or to any third party for any failure to perform or delay in performing the Services caused (in whole or in part) by an event beyond Tri-Fixx control including (without limitation) labour shortages, labour disputes, transport delays, data-communication delays, inability to obtain products or supplies, fires, civil disobedience, mechanical breakdown, weather, acts of God, government action or regulation, computer software error or any similar event. In those circumstances Tri-Fixx can delay performance of the relevant types of Services without any liability to Tri-Fixx.
15.1 Subject to sub-clause 15.1.8 any notice, approval, consent or other communication in relation to this Agreement must be:
15.1.1 In writing;
15.1.2 Marked for the attention of the party’s representative.
184.108.40.206 Left or sent by prepaid ordinary post to the last notified address of the party.
220.127.116.11 Sent by facsimile to the last notified facsimile number of the party.
15.1.3 Sent by electronic mail (email) to the last notified email address of the party.
15.1.4 A notice, approval, consent or other communication takes effect from the time it is received unless a later time is specified in it.
15.1.5 If posted in Australia, a letter is taken to be received on the third day after posting.
15.1.6 A facsimile is taken to be received at the time shown in a transmission report by the machine, which indicates that the whole of the facsimile was sent.
15.1.7 An email is taken to be received at the time shown in a delivery confirmation report generated by the sender’s email system.
15.1.8 A notice pursuant to clause 6 shall not be sent by email.
16.1 Governing Law
These terms and conditions are governed by the laws in force in Victoria, Australia. The Client agrees to submit to the exclusive jurisdiction of the courts of that jurisdiction.
If either party fails to exercise any right or power under this Agreement this will not be a waiver of that right or power. Any failure or delay will not prevent a party from exercising that power at a later date.
Tri-Fixx may subcontract any of the Services contemplated by this Agreement without the Client’s prior written consent.
If any clause in this Agreement is invalid, the enforceability of the remaining clauses shall not be affected.
This Agreement cannot be assigned by the Client unless it first obtains the written consent of Tri-Fixx, which shall not be unreasonably withheld.
This Agreement cannot be varied except in writing and signed by both parties.