Schedule 3- Contract Terms
1.1 We represent and warrant to You that:
(a) We have full power and authority to enter into and to perform the Services specified herein;
(b) We will perform our Services with due care and skill;
(c) We will perform our Services within a reasonable time; and
(d) Our supply of the Services will not infringe the Intellectual Property Rights of any third party.
1.2 You represent and warrant to Us that:
(a) You have full power and authority to enter into this agreement with the Company;
(b) You have not relied and will not rely on Us in relation to any of the matters referred to in clause 4 of the “Request to provide Services” hereinbefore referred to.
You must promptly provide Us with any information or materials that we reasonably request to enable Us to provide You with the Services and comply with our obligations under these Contract Terms.
3. Pricing and Payments
You must pay the Fees set out in Schedule 2 to Us in the amounts and at the times and in the manner provided therein.
4.1 You will continue to own any Intellectual Property Rights that are used in connection with the supply of the Services, and which were owned by You before that time.
4.2 We will continue to own any Intellectual Property Rights that are used in connection with the supply of the Services, and which were owned by Us before that time.
4.3 You license the use by Us of any Your Intellectual Property Rights to the extent required to enable Us to supply the Services.
4.4. Any Intellectual Property which is developed in the future by Us and which is used in connection with the supply of any of the Services vests in and is owned by Us, and You must do all things and sign all documents reasonably required by Us to give effect to this clause.
4.5 Any working papers with respect to the delivery of the Services, including electronic documents and files and their contents, are and will remain Our property provided always that Your Confidential Information will remain Your property.
4.6 Each party acknowledges and agrees that they must not, by any act or omission, damage or impair any of their respective Intellectual Property Rights.
5.1 We do not give any warranties or representations about Our Services except for those expressly contained in these Contract Terms.
5.2 If You are a Consumer as defined under the Australian Consumer Law (ACL) in relation to the supply of any services, the Consumer Guarantees as defined in the ACL shall apply to the supply of those services, and Our liability in connection with the Consumer Guarantees is not limited except as stated in clause 5.3.
5.3 If You are a Consumer in relation to the supply of any of Our services, then Our liability in connection with any Consumer Guarantee is limited to one of the following (as selected by Us):
· The supply of the services again; or
· The payment of the cost of having the services supplied again, except where it is not Fair or Reasonable as defined in the ACL for Us to limit liability in this way.
5.4 Subject to clause 5.2, We exclude any liability in contract, tort (including negligence) or otherwise for any failure to provide services or for any defect in services that we provide to the extent that the failure or defect results from:
§ Any telecommunications or internet service or the Register being unavailable, interrupted or delayed;
§ Any act or omission of any third party that is not one of our subcontractors, including without limitation the Registrar or any of the Registrar’s delegates;
§ Scheduled downtime for maintenance or repairs relating to the Register or any of Our technology platforms used for delivery of the Services.
5.5 Subject to clauses 5.2 above, Our liability in contract, tort (including negligence) or otherwise arising in connection with the provision of the Services or under these Contract Terms for any losses, damages, costs expenses or claims suffered or incurred by You in any calendar year is limited in the aggregate to an amount equal to the fees paid by You to Us during that calendar year.
5.6 Subject to clauses 5.2 and 5.5 above, both You and We exclude any liability in contract, tort (including negligence) or otherwise in connection with the provision of Our Services or under these Contract terms for any indirect losses or damages, and for any special, punitive or exemplary damages.
6.1 We may terminate our arrangements with You immediately by notice given to You if:
(a) You do not pay an amount owed to us within 7 days of receiving a notice given by Us requesting payment and you have failed to rectify such default with that time;
(b) You fail to perform an obligation under these Contract Terms and You do not remedy that failure within 7 days of receiving a notice given by Us requesting that You remedy it; or
(c) You are subject to an Insolvency Event including, without limitation, if You become insolvent, a Liquidator or an Administrator is appointed or you are unable to pay Your debts as they fall due.
6.2 You may terminate your arrangements with Us by notice given to Us if:
(a) We fail to perform an obligation under these Contract Terms and We do not remedy that failure within 7 days of receiving a notice given by You requesting that We remedy it; or
(b) We are subject to an Insolvency Event including, without limitation, if We become insolvent, a Liquidator or an Administrator is appointed or if We are unable to pay Our debts as they fall due.
7.1 Any notice required by or contemplated by this Agreement must be in writing in the English language.
7.2 Any notice given or to be given by You or Us to the other party shall be sufficiently served, if delivered or sent:
(b) By facsimile transmission to a number provided by the other party for the purposes of these Contract Terms with a transmission confirmation receipt marked "OK";
(c) By email to an address provided by the other party for the purposes of these Contract Terms, if the e-mail is acknowledged by the recipient; or
(d) By pre-paid post to the other party to be served at the registered office of the other or to an address provided by the other party for this purposes of this Agreement, (in which case it is taken to be received 3 days after the date of posting).
8.1 No party may assign this Agreement or any of its rights, powers or remedies under this Agreement without the prior written consent of the other, provided always that such consent shall not be unreasonably withheld.
8.2 Subject to obtaining your prior written consent (which consent shall not be unreasonably withheld), we may subcontract the performance of all or part of the Services and this may include subcontracting to a party or parties outside Australia.
9.1 To the extent that a party makes a taxable supply (as defined in the GST Act) in connection with this Agreement, the consideration payable by a party under this Agreement for that supply represents the value of the taxable supply for which payment is to be made, unless otherwise expressly agreed. (
9.2 If a party makes a taxable supply pursuant to this Agreement, then the party liable to pay for the taxable supply must also pay, at the same time and in the same manner as the value is otherwise payable, the amount of any GST payable in respect of the taxable supply.
9.3 A party's obligation to make a payment under clause 9.2 is subject to a valid tax invoice being given to that party by the supplier of the taxable supply.
Any variation of this Agreement must be in writing signed by You and Us.
11.1 We must pay any costs that You incur in enforcing Your rights under this Agreement including legal costs on a full indemnity basis.
12.1 You must keep confidential any Confidential Information (including any Confidential Information that We provide to You), and You must not use it except for the purposes of this Agreement.
12.2 We must keep confidential any Confidential Information (including any Confidential Information that You provide to Us), and We must not use it except for the purposes of this Agreement.
12.3 The Company will collect, use, disclose and store any information it collects from You in accordance with the National Privacy Principles set out in Schedule 3 of the Privacy Act 1988.
13.1 To the extent that an event of Force Majeure (being an event beyond the control of a party) applies and interrupts or prevents the supply of the Services, You may suspend or delay supply of the Services without any liability to Us.
13.2 If You suspend or delay the supply of the Services for a period that exceeds 30 days, We may terminate this agreement by notice given to Us, but We must pay for any Services supplied by You before termination.
14.1 This Agreement is comprised of the clauses and the beginning of this document and the three Schedules referred to therein.
14.2 Terms and expressions defined in or for the purposes of the PPSA or the ACL have the same meaning when used in this Agreement