Terms and Conditions – Professional Services

Definitions

In this Agreement, capitalised words have the following meanings unless defined elsewhere:

Agreement means the Quotation for provision of Services from Intersect Australia Limited [ACN 131 752 657] (“we/us/our”), the Acceptance of the Quotation and these Terms and Conditions.
Claim means any present or future, actual or contingent, right remedy, entitlement, demand, proof of debt, action, suit or proceeding for damages, loss, debt, costs (including legal costs and expenses), restitution, equitable compensation, account, injunctive relief, specific performance or any other remedy, whether by original claim, cross claim or otherwise, whether arising at common law, in equity, under statute, or otherwise arising out of or in connection with the facts or matters referred to or alleged in or concerning this Agreement.
Client (“You”) means any person or corporation (or any “related” or “associated” person or corporation of them, within the meaning of those terms in the Corporations Act 2001 (Cth)) that procures the Services from Intersect, and without limiting the foregoing includes statutory body corporates.
Client Material means documents, images or other material provided by you to us for use in the delivery of the Service.
Confidential Information means any information that is disclosed under this Agreement that:
  • is identified or marked as confidential by the disclosure;
  • is by its nature confidential; or
  • is by its nature confidential or that otherwise the recipient of the information knows or ought reasonably know, is confidential,
but excludes information that:
  • is already known to the recipient prior to its disclosure by the discloser; or
  • is independently developed or legally acquired by the recipient (including by lawful disclosure by a third party), or
  • is or becomes publicly available without breach of this Agreement by the recipient.
Deliverables means the set of agreed outcomes for the Service as indicated in the Quotation.
Fee means the amount we charge you for the provision of the Service as set out in the Quotation.
Force Majeure Event means any event which is outside the reasonable control of the affected party and could not have been prevented by that party taking all reasonable steps.
Insolvency Event means an event where:
  • You fail to pay when due any amount payable under this Agreement; or
  • An application or an order is made, proceedings are commenced, a resolution is passed or proposed in a notice of meeting or an application to a court or other steps are taken to commence:
    • the winding up, dissolution, official management or administration of the Customer; or
    • the Customer enters into any arrangement, compromise or composition with or assignment for the benefit of its creditors or any class of them;
  • The Customer is, or is deemed under any applicable legislation to be, unable to pay its debts when they fall due (other than as a result of a failure to pay a debt or claim the subject of a good faith dispute) or stops or suspends or gives notice that it intends to stop or suspend payment of all or any class of its debts; or
  • a receiver, receiver and manager, administrative receiver, trustee in bankruptcy or similar officer is appointed to the Customer.
Intellectual Property Rights or Intellectual Property means all intellectual property rights, including without limitation: patents, copyright, registered designs, trademarks, all other rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields and the right to have confidential information kept confidential; and any application or right to apply for registration of any of those rights;
Intersect Employee means any person employed or contracted by us.
Intersect’s Background IP means any Intellectual Property Rights owned by Intersect prior to the commencement of this Agreement and/or developed outside the scope of this Agreement.
Material means all User-submitted content, including text, code, photos, video, music, audio, graphics and any other form of data. Some products may offer additional services where physical materials are provided. These are all included under the term “Material”.
Privacy Legislation means any Commonwealth or State legislation which deals with personal information, sensitive information or health information, and includes without limitation the Privacy Act 1988 (Cth) and the Australian Privacy Principles made under that Act, the Health Record and Information Privacy Act 2002 (NSW) and the Health Privacy Principles made under that Act, and the Privacy and Personal Information Protection Act 1988 (NSW) and the Information Privacy Principles made under that Act;.
Quotation means the quotation for the provision of the Service provided by us to you, which identifies the services to be provided and the amount to be paid for the provision of the Service, and in case we have provided a proposal, Quotation includes the proposal submitted by us.
Services (or Service) includes, but is not limited to the activities we will perform, including engineering and professional services.
Software Defect means an error or fault in a computer program or system that causes it to behave in ways that differ from agreed specifications.

Acknowledgment and Acceptance of Terms and Conditions

These Terms and Conditions for the provision of the Service (“Terms”) govern your use of our Services and form a binding contractual agreement between you, the user of the Services, and us. These Terms are important and you should ensure that you read them carefully and contact us with any questions before you use the Service.

By engaging us to provide Services, you acknowledge and agree that you have had sufficient opportunity to read and understand these Terms and you agree to be bound by them. If you do not agree to these Terms, please do not use our Services.

Accepting the Quotation, Payment & Your Obligations

  • You must pay any invoices received from us that are correct and issued in accordance with the provision of the Service, in the time period stated.
  • You will provide us with Client Materials and reasonable assistance including, where relevant, instructions and or decisions on queries, to enable us to perform our obligations in the delivery of the Service.
  • You will take responsibility for and pay for any reasonable costs and expenses incurred by us (provided you have confirmed your consent in writing prior to incurring these additional costs and expenses) for unanticipated expenses such as travel, third party code licences, stock images, domain name registration, that are required to complete the Service.
  • You must pay for any enhancement to the Service beyond the agreed specifications, as requested by you and agreed by us by email from time to time after the Service commences.
  • You represent and warrant that your request and subsequent use of the Service does not violate any applicable law or regulation, and that you agree to abide by the entirety of these Terms in relation to use of the Service.
  • If any consents (which may include, without limitation, consents for Intersect to access use, store and disclose data of the Client) are required for Intersect to provide the Services, Client must procure those consents before Intersect is required to provide the Services.

Our Obligations

  • We will perform the Service, complying with any agreed specifications on the Service in accordance with this Agreement and Deliverables, on or before agreed milestones and comply with any applicable standards, awards, laws and regulations.
  • We will exercise the standard of skill, care and diligence in the performance of the Services that would generally and reasonably be expected of a professional provider of similar services, using appropriate personnel and equipment and at appropriate times.
  • We will seek your consent (which you will not unreasonably withhold) if we need to use third party products or libraries in delivering the Service.
  • We will act in accordance with any reasonable additional instructions or directions given by the Client from time to time.

Warranties & Release

Each Party represents and warrants that:

  • it has the legal capacity to enter into the Agreement;
  • its provision or use of the Service will not be in breach of any law; and
  • any Material provided by it (regardless of medium) will not infringe the copyright of third parties.

Liability

  • To the full extent permitted by law, we exclude all liability in respect of loss of data, interruption of business or any consequential or incidental damages.
  • To the full extent permitted by law, we exclude all representations, warranties or terms (whether express or implied) other than those expressly set out in these Terms.
  • These Terms are to be read subject to any legislation which prohibits or restricts the exclusion, restriction or modification of any implied warranties, conditions, guarantees or obligations. If such legislation applies, to the extent possible, we limit our liability in respect of any claim to, at our option to the following:
    • If the breach relates to goods:
      • Replacement of the goods or the supply of equivalent goods;
      • Repair of the goods;
      • Payment of the cost of replacing the goods or of acquiring equivalent goods; or
      • Payment of having the goods repaired.
    • If the breach relates to services:
      • Supply of the services again; or
      • Payment of the cost of having the services supplied again.
  • All timeframes estimated by us and communicated to you are estimates. We will endeavour to complete all work within estimated timeframes. However, we will not be liable for any penalties, monies or hardships otherwise incurred by the client if the Services cannot be completed within the estimated timeframe.
  • We do not accept responsibility for losses or damage arising from Software Defects or other errors in Services.
  • We do not accept responsibility for Software Defects, errors, damages, losses or additional costs that relate to third party products that Intersect may depend on when delivering the Service.

Client Materials

  • Ownership of all Client Material, including Intellectual Property Rights in the Client Materials remains vested at all times in you.
  • We will keep safe and secure any Client Materials we have been given for the purpose of this Service.
  • We will copy and reproduce Client Materials only for the purpose of this Service and in accordance with any stipulated conditions as agreed in writing.

Intellectual Property Rights

  • Nothing in this Agreement alters Intersect’s ownership of Intersect’s Background IP.
  • Unless these have been specifically varied in the Quotation, the following terms apply:
    • You acknowledge and agree that the Service contains proprietary information and content that is protected by intellectual property and other laws, and may not be used except as provided in the Agreement.
    • You acknowledge and agree that upon receipt of a notice of a claim of copyright infringement, we may immediately remove the identified materials from the Service without incurring any liability to you or any other party and refer the infringement claims to you.
    • It is strictly prohibited to copy, alter, adapt, distribute, display, republish or modify any materials or software contained in the Service except as authorised under the Agreement. Nothing contained in the Agreement will be construed as granting any licence or right of use of any trademark, information, material or software in the Service. To the extent that you choose to use any software of any third parties made available as an aspect of the Service, you agree to comply with the terms and conditions of use of that software as provided by the relevant supplier.
    • The Client owns the Intellectual Property in the Deliverables under this Agreement, excluding Intersect Background IP.
    • To the extent the Service utilises Intersect Background IP, Intersect grants perpetual non-assignable non-transferable rights in Intersect Background IP to the Client for the sole purpose of using the Deliverables.
  • If any third party Claim, based on alleged infringement of an Intellectual Property Right in a document Deliverable is asserted against You, by virtue of your use of the Service, You will immediately notify us. We will promptly investigate such Claims and prepare any defence of such Claims or settle such Claims at our cost. You may participate in any defence or settlement of Claims that we are obliged to defend or settle, at your own cost. We have the right, at our discretion, to control and direct the investigation, defence or settlement and You agree to reasonably cooperate and assist us in defending or settling any such Claim.
  • We have no obligation or liability for any claim of infringement arising out of or in connection with:
    • your use of superseded materials or software contained in the Service, of the infringement would have been avoided by using a current version release of the materials or software contained in the Service;
    • any modification of the materials or software contained in the Service not expressly authorised or instructed by us;
    • any breach by you of the Agreement, if the infringement would have been avoided by not breaching the Agreement.
  • In the event that our Services or any of the materials or software contained in our Services are held by a court of competent jurisdiction to be, or are to our knowledge or belief, infringing, then we have the option, at our expense, to:
    • modify the Deliverables, Service or materials or software contained in the Service to be non-infringing; or
    • obtain a licence to continue using the Services, Deliverables or materials or software contained in the Services.

Support and Maintenance

Any applicable ongoing support and maintenance services, updates, versions, or new releases must be contracted under a separate agreement.

Termination

  • These Terms terminate after you have paid for the Services supplied to you and we have performed the Service.
  • We may otherwise terminate the Agreement immediately, on notice to you, if you have breached any provision hereof in any way, including but not limited to:
    • failure to pay any Fees on time, irrespective of further notice ;
    • breach of any of these Terms, which breach is not rectified within a reasonable time requested by us, except in the case of a breach which, in our sole opinion, is not capable of being rectified. In this case termination is effective as at the date shown in the notice;
    • if you commit an act of Insolvency, including but not limited to the appointment of an administrator, receiver, manager or liquidator.
    • if we notify you that there is a Force Majeure Event in accordance with clause 14.
  • The Client may terminate this Agreement under circumstances as agreed in the Quotation.
  • Upon termination:
    • We will invoice you for any work completed to date, as a percentage of the total work involved and pass on any other costs incurred in the delivery of the Service prior to termination;
    • You will pay us for any work completed to date, as a percentage of the total work involved, and for any other costs incurred in the delivery of the Service prior to termination;
    • Each party must return to the other (or destroy, as directed) all documents and information provided to the other party including Client Materials; and
    • Except for in case of completion of service under 10.1, You will have no right to access the Service.

Privacy Legislation

Intersect and the Client must comply with any applicable Privacy Legislation and must not do anything which would cause the other party to be in breach of the Privacy Legislation.

Billing

Unless these have been specifically varied in the Quotation, the following terms apply:

  • Intersect will invoice quarterly in advance.
  • Payment terms are net 30 days from invoice and will be agreed to by both parties prior to the commencement of any Service.
  • Invoices are due and payable on the date indicated on the document.

GST

  • Meaning of words used in this clause but not defined in the Agreement have the same meaning as in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
  • Amounts exclusive of GST. Unless otherwise expressly stated in the Agreement, all amounts payable or consideration to be provided under or in accordance with the Agreement are exclusive of GST.
  • Payment of GST. The recipient of the taxable supply must pay to the supplier an additional amount equal to the GST payable on or for the taxable supply subject to the recipient receiving a valid Tax Invoice in respect of the supply at or before the time of payment. Payment of the additional amount will be made at the same time as payment for the taxable supply is required to be made in accordance with the Agreement.
  • If the Agreement requires a party to pay for, reimburse or contribute to any expense, loss or outgoing (“reimbursable expense”) suffered or incurred by another party, the amount required to be paid, reimbursed or contributed by the first party will be the sum of:
    • the amount of the reimbursable expense net of input tax credits (if any) to which the other party is entitled in respect of the reimbursable expense (“net amount”); and
    • if the other party’s recovery from the first party is a taxable supply, any GST payable in respect of that supply, such that after the other party meets the GST liability, it retains the net amount.

Force Majeure

  • Neither party is liable for any breach of its obligations under the Agreement to the extent that the breach resulted from a Force Majeure Event provided that it:
    • promptly notifies the other party (with appropriate details); and
    • takes all reasonable steps to work around or reduce the effects of the Force Majeure Event.
  • If a Force Majeure Event continues for more than 14 days or continues beyond the Service Period, we may terminate this Agreement with immediate effect.

General

  • You must not assign, sub-licence or otherwise deal in any other way with any of your rights under these Terms.
  • If a provision of these Terms 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.
  • Each party must at its own expense do everything reasonably necessary to give full effect to the Agreement and the events contemplated by it.
  • The Agreement is governed by the laws of New South Wales and each party submits to the jurisdiction of the courts of New South Wales.

Confidentiality and Protection of Data

  • Each party:
    • May use Confidential Information of the other party for the purposes of the Service.
    • Must keep confidential all Confidential Information of the other party; and
    • May disclose Confidential Information of the other party only to employees and contractors who have a need to know and are aware that Confidential Information must be kept confidential.
  • A mutual Non Disclosure Agreement is required to be executed for projects that result in the creation or alteration of sensitive material or Intellectual Property.
  • A party must use their best endeavours in accordance with industry best practice to prevent unauthorised physical and online access by third parties to any Confidential Information of the other party in its possession.
  • A party’s obligations under this clause 16 will not be taken to have been breached where the information is legally required to be disclosed. However, the Confidential Information (or part of it) which is disclosed by force of law will remain Confidential Information for all other purposes.
  • You must, on demand, return (and procure the return) to us any of our or our Related Bodies Corporate’s Confidential Information in your possession or control (or in the possession or control of any of your employees, agents, contractors or sub-contractors).
  • Nothing in this clause 16 will be construed to prevent a party from disclosing information including the Confidential Information of the other party to its employees, agents or contractors on a “need-to-know” basis, provided that if the information is Confidential Information the disclosing party ensures that such information is treated as confidential by its employees, agents and contractors and such disclosure is bound by terms equivalent to this clause 16.

Survival

Any term of this Agreement is intended to survive termination of this Agreement. Without limitation to the foregoing, the following clauses will survive the termination of this Agreement: clauses 8, 16 and this clause