1.1 Assure Group will provide the Services and /or the Deliverables specified in the Offer attached.
1.2 Assure Group will submit the Deliverables to the client for the Client’s acceptance. The Client must respond to Assure Group, in writing, within 10 days of submission of the Deliverables to confirm acceptance or rejection. Where the Client rejects the Deliverables, Assure Group will endeavour to incorporate agreed changes to the Deliverables and reissue the Deliverables to the Client for acceptance. If no notification is received within 10 days of submission, Assure Group will deem the Deliverables to be accepted.
1.3 Upon acceptance of the Deliverables, the Services will be completed (“Completion”).
2 Changes to Services
2.1 At any time before Completion either party may, in writing, request that some change be made to the Services (“Change Request”). Either party may reject a Change Request but must not do so unreasonably.
2.2 If the parties agree to implement a Change Request, the details of that Change Request, including any revision to the Price and Timetable or Delivery Dates, must be specified and confirmed in writing by the parties.
3.1 Unless otherwise stated the Price and all other sums payable under this Agreement exclude any GST payable in respect of the Services which shall be payable by the Client in accordance with Clause 4.
3.2 If the Client fails or delays in fulfilling any Client responsibilities in accordance with Clause 5, Assure Group may revise the Price and any Timetable of work and/or Delivery Dates. In this event Assure Group will promptly, following the failure or delay, provide the Client with a notice describing in reasonable detail the additional costs and expenses and/or delay that have been or are likely to be incurred by Assure Group as a result thereof and the Client will:
(a) pay Assure Group for additional costs and expenses incurred by Assure Group, either by mutual agreement of a new Price or on a time and materials basis at Assure Group’s then current the Fee Rates for such services; and
(b) grant a reasonable extension for the performance of this Agreement.
4.1 Assure Group will issue invoices to the Client in accordance with the Payment Schedule specified in the Offer. The Client must pay each invoice within fourteen (14) days of the date of issue. Assure Group will ensure that its invoices comply with applicable GST legislation and itemise the GST component of the price.
4.2 If the Client fails to pay any sum when due, Assure Group may charge interest thereon from the due date for payment of the applicable invoice until the date payment is made at the rate of two (2) per cent per annum over the Base Rate of Commonwealth Bank of Australia from time to time.
4.3 If the Client fails to pay any sum when due, Assure Group may, without prejudice to any other remedy, give the Client fourteen (14) days’ notice that it intends to stop work. If following this notice, Assure Group stops work, Assure Group may charge the Client the amount of the costs and expenses that Assure Group incurs by such withdrawal and any subsequent resumption of work and the Client shall grant a reasonable extension of time.
5 Client obligations
5.1 The successful and timely performance by Assure Group of the Services is dependent upon the Client’s prompt performance of its obligations including the responsibilities described in this Clause 5.
5.2 The Client agrees to provide all reasonable assistance to Assure Group in providing the Services and to nominate in writing an authorised representative who will:
(a) be authorised to make binding decisions for the Client with regard to this Agreement and any Change Requests;
(b) promptly review all documents that are provided by Assure Group for review so that corrections or changes may be made by Assure Group; and
(c) promptly provide Assure Group with complete and accurate information concerning the Client and its business which may be required by Assure Group for the performance of the Services.
5.3 Where participation by, or access by Assure Group to, the Client’s own staff is necessary for the performance of the Services, or the staff participate in producing the deliverables, the Client must ensure that those staff are available at the times agreed by the parties and that those staff possess the appropriate skills and experience for the tasks assigned to them.
6.1 Each party’s staff, when working at the other party’s premises, will comply with any applicable rules and regulations relating to such premises as are notified to them.
6.2 Neither party will, for the duration of this Agreement until twelve (12) months after Completion or termination of this Agreement, whichever is the earlier, without the other party’s prior agreement in writing, employ or engage any Employee of the other party. In this clause, “Employee” means any personnel (including employees and contractors) of a party involved in the provision of the Services.
6.3 Where Clause 6.2 is contravened, the party in default will be liable to pay to the other party liquidated damages equal to 100% of that person’s gross annual salary package calculated by reference to the preceding twelve (12) months (which the parties agree to be a reasonable estimate of the costs of hiring and training a replacement Employee).
7 Intellectual Property Rights and Confidentiality
7.1 To the extent that any Deliverable or any document, material, idea, data or other information constitutes an original item developed by Assure Group in performing the Services, title thereto and all Intellectual Property Rights (“IPR”) therein shall vest in Assure Group.
7.2 Subject to payment of the Price, and the Client’s continuing compliance with its obligations under this Agreement, Assure Group hereby grants to the Client a non-exclusive, personal, royalty-free license to use and reproduce for the Client’s own business purposes those items described in Clause 7.1. The Client must ensure that each copy of such items, whether in whole or in part, bears a notice that Assure Group or the third party owns the IPR.
7.3 To the extent that any document, material, idea, data or other information submitted or disclosed by Assure Group to the Client in performing the Services constitutes a pre-existing proprietary item of Assure Group or a third party, title thereto and all IPR therein belong to Assure Group or such third party, as appropriate. The Client’s right to use those items is on the same terms as the license in Clause 7.2.
7.4 The Client shall retain title to and all IPR in any computer program, data or other material which constitute the pre-existing proprietary items of the Client and which are submitted by the Client to Assure Group for the performance of the Services.
7.5 Each party shall hold in confidence and not disclose to any third party (unless and to the extent required by law) Confidential Information of the other party. Confidential Information means any material (including software), document, idea, data or other information which relates to either party’s research and development, trade secrets or business affairs or information which is marked as confidential, or is confidential by its nature, and is disclosed by either party to the other (a “receiving party”) for the purposes of this Agreement. Confidential Information does not include any information which:
(a) is known to the receiving party, under no obligation of confidence from other sources; or
(b) is or becomes publicly known through no wrongful act of the receiving party.
7.6 Notwithstanding this Clause, neither party shall be prevented or restricted from disclosing or using in the course of its business any technical knowledge, skill or expertise of a generic nature acquired by it in the performance of this Agreement.
7.7 Assure Group may refer to the Client as a client in its publicity material, but shall not publicise its work under this Agreement without the Client’s consent.
7.8 Each party agrees that it will not use, store or disclose any Confidential or personal information in any manner which would breach any applicable laws and regulations including without limitation the Privacy Act 1988 (Cwth) and the National Privacy Principles as set out in that Act.
8 Limitation of liability
8.1 Assure Group will exercise reasonable skill and care in performing the Services but will not be responsible for the accuracy of advice or Deliverables based on information supplied by the Client or third parties. Responsibility and liability for decisions made on the basis of Assure Group’s advice remains with the Client, Assure Group excludes any liability for reliance on or implementation of the Deliverables by the Client or any third party.
8.2 Assure Group’s liability under or in connection with this Agreement, howsoever arising, shall not exceed in the aggregate the lesser of $100,000 or the amount paid or payable by the Client to Assure Group under this Agreement at the time of the alleged breach or loss, provided however, that Assure Group shall have no liability in respect of loss or corruption of data, loss of profits or contracts or for special, indirect or consequential damages. These limitations and exclusions shall not apply to personal injury, including death, caused by Assure Group’s negligence.
9.1 Subject to the Client using the Deliverables in accordance with any applicable specifications and not making any unauthorised alterations, additions or repairs, Assure Group warrants the Deliverables for 10 days from the date of delivery.
9.2 Assure Group will use reasonable endeavours to remedy a breach of warranty above which is notified to it by the Client during the applicable warranty period by either repairing or replacing the defective products or services free of charge.
9.3 Warranties on non-Assure Group products will extend only to those (if any) given by the supplier of the products.
9.4 To the extent permitted by law, the warranties set out in this clause are in lieu of and exclude all other terms, conditions or warranties implied by statute, law or otherwise as to the quality or fitness of the products for any particular purpose or otherwise
10.1 The Agreement terminates on the later of Completion in accordance with Clause 1.3 and receipt of all payments due in respect of the Services. Termination shall not affect any rights or obligations under this Agreement that are intended to survive termination including without limitation the obligations in Clause 7.
10.2 If a party breaches this Agreement, the other party may give thirty (30) days’ written notice to that party requiring that the breach be remedied. If the breach is not remedied within such time, the notifying party may terminate this Agreement. On termination, the Client shall promptly pay for all Deliverables completed prior to the date of termination and, where the client is the party in breach, Assure Group will also be entitled to charge for work in progress and for its reasonable costs and expenses incurred prior to termination in connection with providing the Services which cannot reasonably be defrayed elsewhere.
10.3 Either party may terminate this Agreement immediately by giving written notice to the other party if the other party becomes insolvent as that expression is defined in Section 9 of the Corporations Act 2001 (Cwth).
11.1 Neither party shall be liable for any delay in meeting or failure to meet any of its obligations under this Agreement due to any cause outside its reasonable control.
11.2 This Agreement is the complete and exclusive statement of the agreement between the parties and supersedes all prior related proposals, communications and agreements in relation to its subject matter whether oral or written.
11.3 This Agreement is governed by the laws of the state of Queensland,and the parties hereby submit to the jurisdiction of the Australian courts.
11.4 Any notice under this Agreement must be given in writing to the address stated in the offer, or such other address as notified in writing from time to time.
11.5 This Agreement may only be varied in writing, signed by an authorised representative of each party.
11.6 If a dispute arises in connection with this Agreement, a party must give notice to the other party specifying the dispute. The parties shall use reasonable endeavours to resolve the dispute by consultation and negotiation between senior executives before recourse to other mechanisms including mediation, arbitration and court proceedings.