Invoice Terms – Sale of Goods and Services
In these Invoice Terms and elsewhere in the Contract unless a contrary intention appears:
Claim means any claim, demand or cause of action whether arising in contract, tort, under statute or otherwise in relation to the Contract, the Services or any other matter connected with the Goods.
Client means the person(s), company or firm named in the Invoice.
Client IP means the Client’s Intellectual Property Rights which:
(i) are in existence at the Commencement Date; or
(ii) come into existence after the Commencement Date otherwise than in connection with the Contract.
Commencement Date means the commencement date specified in the Invoice (if any) or as varied in accordance with clause 23.
Communications includes all notices, notifications, invoices, certificates, approvals, consents, statements, reports, authorisations, ratifications, delegations, claims and other communications (other than day to day communications).
Company means Amped IT Pty Ltd (ACN 164 903 262).
Company IP means the Intellectual Property Rights of the Company which:
(i) are in existence at the date of the Contract; or
(ii) come into existence after the date of the Contract otherwise than in connection with the Contract.
Completion Date means the completion date specified in the Invoice (if any) or as varied in accordance with clause 23.
Contract means the agreement between the Company and the Client evidenced by the Invoice, these Invoice Terms and all other documents which are either attached to the Invoice or incorporated by reference.
Contract IP means all Intellectual Property Rights (present or future) created, discovered or coming into existence as a result of, for the purpose of, or in connection with the provision of the Services or the Contract (including all Intellectual Property Rights in anything developed by the Company or the Client in connection with the provision of the Services and any Intellectual Property Rights in the documentation or materials provided by the Client to the Company or vice versa).
Dispute means any dispute, question or difference of opinion between the parties concerning or arising out of the Contract, or its validity, construction, meaning, operation or effect, or concerning the rights, duties or Liabilities of either the Company or the Client.
Fees means the amount(s) payable, excluding GST, to the Company in relation to the provision of the Services and/or Goods in accordance with the Invoice or as varied in accordance with the Contract, and includes any Minimum Charges and Standby Rates.
Goods means the goods supplied by the Company to the Client (if any).
GST means any tax, levy, charge or impost implemented under any relevant legislation concerning goods and services tax or value added tax.
Intellectual Property Right means (in the context of a party) all industrial and intellectual property rights whether protectable by statute, at common law or in equity, including all copyright and similar rights which may subsist or may hereafter subsist in the Services or any subject matter, rights in relation to inventions (including all patents and patent applications), trade secrets and know-how, rights in relation to designs (whether or not registrable), rights in relation to registered or unregistered trade marks, circuit layout designs and rights in relation to circuit layouts, but excludes non-assignable moral rights and similar non-assignable personal rights of authors and producers.
Invoice means the invoice to which these Invoice Terms are attached.
Invoice Terms means these invoice terms and conditions.
Liabilities means damages, Claims, demands, losses, liabilities, costs and expenses of any kind.
Minimum Charges means the minimum charges payable by the Client specified in the Invoice (if any).
Minimum Hours means the minimum hours (per week) specified in the Invoice (if any).
(i) in relation to the Client, any of its employees, sub-contractors (including sub-contractors’ personnel), agents and representatives involved either directory or indirectly in the performance of the Services; and
(ii) in relation to the Company, any of its past or present officers, employees, agents (including for the purposes of clause 7, the entity entering into the Contract for and on behalf of joint venturers or related bodies corporate (if applicable) and that entity’s past or present officers, employees, agents or representatives) or representatives.
representative of either the Company or the Client (as the case may be) means the relevant person specified in the Invoice.
Services means the services described in the Invoice (if any) and such other services as may be agreed between the parties.
Site means the site(s) specified in the Invoice (if any) and the places at which the Services are provided and/or at which the Goods are supplied to.
Standby Rates means the standby rates specified in the Invoice (if any).
Term means the period commencing on the Commencement Date or the date upon which Goods and/or Services are first supplied to the Client and ending on the Completion Date or the date the Contract is terminated pursuant to the Contract or otherwise at law.
In these Invoice Terms headings are for convenience only and do not impact the interpretation, and the following rules apply unless the context requires otherwise:
(a) The singular includes the plural, and the converse also applies.
(b) A gender includes all genders.
(c) If a word or phrase is defined, its other grammatical forms have a corresponding meaning.
(d) A reference to a person, corporation, trust, partnership, unincorporated body or other entity includes any of them.
(e) A reference to a person or a party, includes a reference to that person's or party's executors, administrators, successors, substitutes (including persons taking by way of novation) assigns (in the case of a person) and permitted assigns (in the case of a party).
(f) A reference in the Contract to any law or Act of Parliament or any part of a law or an Act of Parliament will be deemed, unless the context is repugnant, to include a reference to any legislation, proclamation or order made under such Act and to any amendments or modifications made to such law, Act, part, legislation, proclamation or order from time to time.
(g) Where two or more persons are named as the Client then the obligations on their part will bind and be observed and performed by them jointly and each of them severally.
(h) A reference to dollars and $ is to Australian currency.
(i) The word including or any other form of that word is not a word of limitation.
(j) Nothing in the Contract is to be interpreted against a party solely on the ground that the party put forward the Contract or a relevant part of it.
(a) The Contract, as amended from time to time in accordance with its provisions, represents the entire agreement between the parties regarding its subject matter and supersedes all prior communications, arrangements, and negotiations.
(b) The Contract is formed upon the earlier of the Client:
(i) signing the Invoice and returning it to the Company or paying the Invoice; and
(ii) by its conduct, verbal or otherwise, permitting or otherwise allowing the Company to commence performing the Services or supplying the Goods,
and, once formed, is the only authority which the parties will recognise for providing the Goods and/or Services.
(c) The Client hereby acknowledges that any terms and conditions attached to any communication from the Client shall not form part of the Contract.
(d) In the absence of written acknowledgment of the Invoice, the provision of any of the Goods and/or Services by the Company will be deemed to be an acceptance of the Contract on the terms contained in the Contract.
(e) Any provision of the Contract that is prohibited or unenforceable in any jurisdiction is ineffective as to that jurisdiction to the extent of the prohibition or unenforceability. That does not invalidate the remaining provisions of the Contract nor affect the validity or enforceability of that provision in any other jurisdiction.
(a) The Company must provide the Goods and/or Services at the Sites for the Minimum Hours per calendar week at each Site during normal business hours, or in such other manner and at such other locations as may be agreed between the parties, for the Term in consideration of the payment by the Client of the Fees.
(b) Delivery of the Goods and/or supply of the Services shall be made to the Site and at the Client’s expense. The Client shall make all arrangements necessary to take delivery of the Goods and supply of the Services whenever they are tendered for delivery or supply.
(c) Where there is no agreement that the Company shall send the Goods to the Client, delivery to a carrier at the expense of the Client is deemed to be delivery to the Client.
(d) The Company may deliver the Goods by separate instalments (in accordance with the agreed delivery schedule, if any). Each separate instalment shall be invoiced and paid for in accordance with the provisions in the Contract and otherwise as reasonably required by the Company.
(e) The failure of the Company to deliver any Goods and or supply any Services shall not entitle the Client to treat the Contract as repudiated.
(f) The Client shall inspect the Goods on delivery and the Services upon supply and shall within seven (7) days of delivery or supply notify the Company of any alleged defect, shortage in quantity, damage or failure to comply with the description. The Client shall afford the Company an opportunity to inspect the Goods and/or completed Services within a reasonable time following delivery or supply. If the Client shall fail to comply with these provisions the Goods and/or Services shall be conclusively presumed to be delivered or supplied in accordance with the Contract and free from any defect or damage.
(g) The Client may return Goods within fourteen (14) days of delivery by the Company only with the prior written consent of the Company, and in any event at the sole discretion of the Company. Goods must be returned in as new condition, along with and all relevant accessories and must be in the original packaging, software unopened and must be in an undamaged and saleable condition.
(h) All cost incurred in returning any Goods to the Company shall be borne by the Client, unless otherwise approved in writing by an authorised officer of the Company.
(i) All claims for credit in respect of any Goods returned are at the sole discretion of the Company.
(a) The Client must pay to the Company the Fees for the whole of the Term based on the rates or amounts set out in the Contract.
(b) Unless otherwise agreed by the parties, all payments to the Company will be made by electronic funds transfer to an Australian bank account as nominated by the Company.
(c) The Client shall make payment to the Company for the amount set out in an Invoice promptly and in any event within 14 days of the Company submitting the Invoice.
(d) The Client must pay interest on any money which is not paid by the Client when due. Interest is to be at the rate of 12% per annum and is to be calculated on a daily basis from the due date until the money is paid. The interest is to be paid immediately when requested by the Company.
(e) The Client acknowledges that Fees charged may differ from any estimates provided and that all estimates of Fees (if any) are subject to change and may be impacted by various factors including a change of scope and factors outside of our control.
(f) This clause 5 will survive expiration or termination of the Contract.
(a) If any payment made by one party to any other party under or relating to this Contract constitutes consideration for a taxable supply for the purposes of GST or any similar tax, the amount to be paid for the supply will be increased so that the net amount retained by the supplier after payment of that GST is the same as if the supplier was not liable to pay GST in respect of that supply. This clause 6 is subject to any other agreement regarding the payment of GST on specific supplies, and includes payments for supplies relating to the breach or termination of, and indemnities arising from this Contract.
(b) This clause 6 will survive expiration or termination of the Contract.
(a) The Client will indemnify and keep indemnified the Company and the Company's Personnel against all Liabilities arising from an injury to or death of any person and damage to or destruction of any property to the extent that such Liabilities are caused or contributed to by the negligent or otherwise wrongful act or omission of the Client or the Client’s Personnel.
(b) This clause 7 will survive expiration or termination of the Contract.
8. Risk and Title
(a) All risk in the:
(i) Services shall pass to the Client upon completion of the Services (as determined by the Company, acting reasonably); and
(ii) Goods shall pass to the Client upon delivery of the Goods to the Site.
(b) Unless otherwise determined by the Company, all title in the Services and Goods shall pass to the Client upon payment in full of all Fees and satisfaction of all other obligations due by the Company to the Contractor.
(a) In this clause 10:
PPSA means the Personal Property Securities Act 2009 (Cth).
Security Agreement means the security agreement under the PPSA created between the Company and the Client under the Contract, and the following words have the meanings given to them by the PPSA:
(i) Security Interest;
(ii) Purchase Money Security Interest;
(iii) Financing Statement;
(iv) Financing Change Statement;
(vii) Verification Statement; and
(b) The Client acknowledges and agrees that the Contract:
(i) constitutes a Security Agreement for the purposes of the PPSA; and
(ii) creates a Security Interest in all Goods and their proceeds to secure the obligations of the Client to the Company under the Contract.
(c) The Client irrevocably consents to the Company at any time effecting and maintaining a registration on the Register (in any manner the Company considers appropriate) in relation to any Security Interest (including any Purchase Money Security Interest) contemplated or constituted by the Contract in any Goods, Accession and the Proceeds.
(d) The Client undertakes to:
(i) promptly and at its own expense do all things and sign any further documents and/or provide any further assistance and/or provide any further relevant information (such information to be complete, accurate and up-to-date in all respects) which the Company may reasonably require to:
(A) obtain, register, maintain or perfect a Financing Statement or Financing Change Statement in relation to a Security Interest on the Register and/or enforce the Company’s Security Interest in respect of any Goods in accordance with the PPSA;
(B) register any other document required to be registered by the PPSA; or
(C) correct a defect in a statement;
(ii) indemnify, and upon demand reimburse, the Company for all expenses howsoever incurred in registering a Financing Statement or Financing Change Statement on the Register or releasing any Goods charged;
(iii) not register, procure or permit to be registered a Financing Statement or Financing Change Statement in respect of a Security Interest contemplated or constituted by the Contract without the express prior written consent of the Company (which consent may be withheld for any reason in the Company’s absolute discretion); and
(iv) not register, procure or permit to be registered a Financing Statement or Financing Change Statement in respect of any Goods or a Security Interest in favour of a third party without the express prior written consent of the Company (which consent may be withheld for any reason in the Company’s absolute discretion).
(e) The Client and the Company agree to contract-out of the PPSA in accordance with section 115 of the PPSA only to the extent that such contracting-out is for the benefit of the Company.
(f) The Client hereby waives its rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
(g) To the fullest extent permissible by law the Client waives its rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
(h) The Client warrants that all Goods are not purchased for use primarily for personal, domestic or household purposes.
(i) Unless otherwise expressly agreed to in writing by the Company, the Client waives its right to receive a Verification Statement in accordance with section 157(3)(b) of the PPSA.
(j) Unless otherwise expressly agreed to in writing by the Company, the Client must not disclose any information of the kind referred to in section 275(1) of the PPSA to an interested person, or any other person required by an interested person.
(k) The Client shall not sell or grant a Security Interest in any Goods without the Company’s express prior written consent.
(l) The Client shall unconditionally ratify any actions taken by the Company under this clause 9.
(a) To the maximum extent permitted by law the Company makes no representation or warranty of any kind and in particular makes no representation or warranty:
(i) in relation to the Services or Goods;
(ii) in relation to the number of visitors to the Sites; or
(b) The Company’s liability for a breach of a term or guarantee implied by law is limited, at the Company’s discretion, to the re-supply of the Goods or Services or re-payment of the relevant portion of the Fees received by the Company.
11. Laws and Regulations
Each party must at their own cost comply with all applicable laws and any government agency requirements in any way affecting or applicable to the Goods and Services.
(a) The Company may terminate the Contract without cause by providing a minimum of 7 days written notice of its intention to do so to the Client.
(b) The Company may extend the Term for such reasonable period as reasonably required, either by notice to the Client or by continuing to provide the Services, provided that at any time during any period of such extension the Client may terminate the Term by 30 days’ notice in writing to the Company. For the avoidance of doubt, any such notice of termination by the Client does not take effect until 30 days after the notice is received by the Company.
13. Intellectual Property
(a) The Company acknowledges that the Client remains the owner of all Client IP and that nothing in the Contract prevents, limits or restricts the Client's subsequent use or exploitation of the Client IP.
(b) The Client grants to the Company a non-exclusive, non-transferable, royalty free, irrevocable and perpetual licence to use any relevant Client IP for the purposes of providing the Services.
(c) The Client warrants that it has the right to grant to the Company the licence under clause 13(b).
(d) The Client acknowledges and agrees that the Company remains the owner of all Company IP and that nothing in the Contract prevents, limits or restricts the Company's subsequent use or exploitation of Company IP.
(e) The parties acknowledge and agree that ownership in any Contract IP shall vest in the Company as and from its creation.
(f) In respect of Contract IP of which ownership has not yet been or is not able to be transferred to the Company, the Client grants to the Company a non-exclusive, non-transferable, royalty free, irrevocable and perpetual licence to use that Contract IP.
(g) The Client warrants that it has the right to grant to the Company the licence under clause 13(f).
(h) This clause 13 will survive the expiration or termination of the Contract.
(a) The Client shall use reasonable endeavours to ensure that (where relevant) the Services are completed on or before the due date(s) agreed by the parties (Due Date).
(b) The Company shall not be responsible nor liable for any loss, damage, claim or demand howsoever arising as a result of or consequent upon any delay or failure to complete the Services before the Due Date.
In the event that the Company’s performance of the Services is at any time delayed by reason of:
(a) any breach of the provisions of the Contract by the Company or its Personnel;
(b) any act or omission on the part of the Client, its Personnel or the Client’s third party contractors; or
(c) acts of God (including adverse weather), cyclones, fires, acts of war, acts of public enemies, riots or civil commotion,
the Company shall be entitled to an extension of the time required to complete the Services equivalent to the duration of the delay, and the payment of Standby Rates for the duration of the delay.
(a) Each party (Receiving Party) must treat the Contract and the information provided by the other party and its Personnel (Disclosing Party) as confidential information. The Receiving Party must only use such information to the extent necessary to provide or enjoy (as the case may be) of the Services and must not use, disclose or turn to its advantage or in any way profit from the use of such information without the prior written consent of the Disclosing Party. This undertaking does not apply to information which at the time of disclosure is available to the public or which must by law be disclosed.
(b) The Receiving Party must ensure that each of its Client’s Personnel and other persons for whom it is responsible or over whom it is capable of exercising control complies with these confidentiality obligations.
(c) The Receiving Party shall indemnify and keep indemnified the Disclosing Party and its Personnel against all Liabilities associated with any breach by the Receiving Party of this confidentiality undertaking.
(d) Immediately on completion of the Services and supply of the Goods or the expiration or termination of the Contract (whichever first occurs) the Receiving Party will deliver to the Disclosing Party all confidential information (in whatever form) in the custody, possession or control of the Receiving Party or any of its Personnel, or otherwise confirm in writing to the Disclosing Party that all such information has been destroyed or deleted and made generally inaccessible.
(e) The provisions in this clause 16 will survive the expiration or termination of the Contract.
17. Dispute Resolution
(a) If at any time there is a Dispute, the parties will as a condition precedent to the commencement of any proceedings in respect of the Dispute (other than proceedings required on an urgent interlocutory basis), promptly (and no later than 7) days following the occurrence of a Dispute, confer in an endeavour to settle the Dispute.
(b) The parties will ensure that a senior executive officer who has authority to bind its respective party attends the conference.
(c) If the Company and the Client fail to agree within 30 days after first conferring, either party may commence legal proceedings in an appropriate court to resolve the Dispute.
(d) Notwithstanding the existence of any Dispute, the parties will continue to perform all of their obligations under the Contract without limiting their position in respect of any Dispute.
(e) The provisions in this clause 17 will survive the expiration or termination of the Contract.
(a) All Communications must be in writing and in the English language.
(b) Subject to any other specific provision to the contrary, where any Communication requires an act or thing to be performed within a time specified, the Communication must be sent:
(i) as a signed document attached to an email; or
(ii) by mail to, or be left at, the address of the party or person to whom or which the requirement specified in the Communication is directed.
(c) The Communication referred to in clause 18(b) must be sent to or left at:
(i) in the case of the Client or the Company – the relevant address specified in the Invoice;
(ii) in the case of any other party or person (being a body corporate) – its registered office or principal office for the time being; and
(iii) in the case of any other party or person – its address last known to the party or person sending or leaving the Communication.
(d) A Communication will be properly served or given:
(i) if posted by mail to the party’s representative to the address (if any) nominated in the Contract as being the address of the party’s representative, or if left at that address;
(ii) if handed to the party’s representative personally; or
(iii) if sent electronically as an attachment to an email to the party or the party’s representative at the email address specified in the Contract.
(e) The Communications will be deemed to have been received:
(i) if delivered personally, upon delivery;
(ii) if mailed to an address in the city of despatch, upon expiry of 2 working days after the day of despatch;
(iii) if mailed elsewhere within Australia on the expiry of 3 days after the day of despatch;
(iv) if mailed from overseas, on the expiry of 7 days after the day of despatch; or
(v) if sent electronically as an email attachment:
(A) if it is transmitted by 5.00pm (Australian Western Standard Time) on a day – on that day; or
(B) if it is transmitted after 5.00pm (Australian Western Standard Time) – on the next day.
(f) Either party may from time to time substitute a new address, email address or facsimile number for any of the addresses, email addresses or facsimile numbers of the party and the party’s representative for the purpose of this clause 18.
19. Limitation of Liability
(a) To the maximum extent permitted by law, the maximum Liability of the Company to the Client for all Liabilities howsoever arising shall not exceed 10% (ten per cent) of the Fees received by the Company.
(b) Notwithstanding any other provision of the Contract, to the maximum extent permitted by law, the Company is not liable to the Client for any indirect, consequential or special loss (including loss of revenue, loss of profit, loss of business opportunity, and costs payable to third parties), whether arising out of or in connection with the Contract, under statute, in tort (for negligence or otherwise) or any other basis in law or equity.
(c) The provisions in this clause 19 will survive the expiration or termination of the Contract.
20. Assignment and Novation
(a) The Client must not at any time assign its rights or novate its rights and obligations under the Contract to any third party, without the consent of the Company which consent may be given or withheld at its discretion.
(b) The Client acknowledges that the Company may at any time assign its rights or novate its rights and obligations under the Contract to any third party, without the consent of the Client.
(c) The Client must do all things and execute those documents as may reasonably be required by the Company to give effect to an assignment or novation by the Company.
21. Non-Solicitation and Non-Disparagement
(a) The Client must not, and must procure that each of its representatives does not, during the Term and for a period of 12 months after the expiry or termination of the Term:
(i) approach any person who is a customer of the Company for the purpose of obtaining that person as a customer for goods or services of the type provided by the Company; or
(ii) induce or encourage any person who is a director or employee of the Company to leave the employment of the Company.
(b) The Client covenants that it will not at any time make any disparaging comments or disclose any information or make or publish any statement or do any other thing which may tend materially to harm or prejudice the Company’s reputation or name (Prejudicial Information), including by making disparaging comments or disclosing prejudicial information about the Company using social media, web discussion groups, websites or other like forums. The Client agrees to immediately remove any Prejudicial Information posted online immediately upon written request of the Company.
(c) The Client acknowledges that damages alone would not be adequate to compensate the Company for any breach by the Client of this clause 21 and agrees that without limiting the relief that the Company is entitled to seek, the Company may seek an injunction if the Client is in breach of, or threatens to breach the provisions of this clause 21.
22. Force Majeure
To the extent permissible by law, the Company is not liable for any inability to perform the Services by reason of fire, storm, flood, earthquake, act of terrorism or war, industrial action, government directive or (without limitation) any other condition that is beyond the Company’s reasonable control.
(a) The Contract is governed by the law of the State of Western Australia and the parties submit to the exclusive jurisdiction of the courts of the State of Western Australia and of any court which may hear appeals from any of those courts, for any proceedings in connection with the Contract.
(b) The waiver or relaxation partly or wholly of the terms of the Contract will be valid only if in writing and signed by the Client and will apply to a particular occasion and will not be continuing unless expressed so to be and further will not constitute a waiver or relaxation of any other Condition or term.
(c) The Client will not alter the Goods or Services in any way nor deviate from the Contract except as directed or permitted in writing by the Company.
(d) Each party agrees to do all things and execute all deeds, instruments, transfers or other documents as may be necessary or desirable to give full effect to the provisions of the Contract and the transactions contemplated by it.
(e) The Contract may be executed in counterparts.