Standard terms and conditions.
The Client has engaged the Service Provider to deliver the Project and provide the Additional Services, and the Service Provider has agreed to that engagement, on the terms and conditions of this Agreement.
1. DEFINITIONS AND INTERPRETATION
In this Agreement:
Act of God means an act of force majeure or any other act beyond the reasonable control of the parties including, without limitation:
(a) fire, earthquake, storm, flood, hurricane, inclement weather or other act of God, war, terrorism, explosion, sabotage, industrial accident or an industrial strike;
(b) denial of service attacks, telecommunications failure, hardware failure or the failure of software provided by a third party to function in accordance with its specifications or interference by any third party e.g. hacking or defacing;
(c) the failure of any third party (including without limitation, of any subcontractor) to fulfil any obligations to the party; or
(d) any other circumstances or event similar to the above which are beyond the reasonable control of the party.
Additional Services means the provision any services by the Service Provider to the Client (as specified in the Proposal):
(a) Ongoing support;
(b) Hosting and domain names;
(c) Service Level Agreements;
(d) Backup options; and/or
(e) Any other services or products agreed by The Client.
Agreement means the agreement between the Client and the Service Provider, reached on the basis of these terms and conditions and the particulars set out in the Proposal.
Business Day means any day that is not a Saturday or Sunday or a public holiday in the State of Victoria.
Client means the person or entity so identified in the Proposal who has engaged the Service Provider to deliver the Projects and any Additional Services as contemplated by this Agreement.
Client IP means any item or thing provided by the Client to the Service Provider for the Service Provider to include in the Deliverables.
Commencement Date means the date of the first Proposal which the parties execute in relation to this Agreement (or any other commencement date specified in that Proposal).
Confidential Information means all information of a confidential or sensitive nature in relation to the Service Provider or the Client, including, without limitation, information relating to the Projects or the Deliverables and information relating to the business of the Service Provider.
Deliverables means the computer software, website, multimedia, logo, branding, graphic and web design, video or any other works listed in the Scope of Works as part of this Proposal or via other written form such as email which the Service Provider has agreed to deliver to the Client as part of or in addition to a Project.
Dollars or “$” means Australian dollars unless otherwise expressly provided.
Fees means the fees and charges of the Service Provider which are payable by the Client in respect of the delivery of any Project, or the provision of Additional Services or the provision of any other goods and services by the Service Provider under this Agreement.
GST has the same meaning as in A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Hosted Materials the website and any other hosted items included as part of the Deliverables.
Hosting Provider means either the Service Provider, a related party of the Service Provider or a third party nominated by the Service Provider who hosts the Deliverables on their servers.
Hosting Services means the hosting of any Deliverables or other works by the Service Provider on the Client’s behalf.
Intellectual Property Rights means any and all present, future, registered and unregistered intellectual and industrial property rights throughout the world which relate to:
(a) copyright (including future copyright and rights in the nature of or analogous to copyright);
(b) moral rights;
(c) performers' protection;
(d) inventions (including patents);
(e) designs including database design;
(f) trade marks, service marks; and
(g) source code.
Payment Terms means the Payment schedule of the Service Provider’s Fees as set out in the Proposal.
Project means any project for the creation, delivery or implementation of the Scope of works (which may include the modification of existing works) which the Client requests the Service Provider to perform
Project Charter means the document provided by the Service Provider after commencement of the Project. It will include a timeline (including any agreed due dates) for the delivery of the Project.
Proposal means a document which sets out the particulars of a Project and any Additional Services to be delivered under this Agreement, and which either incorporates the terms of this Agreement or refers to this Agreement
Reportable Errors means only those errors or defects in the Deliverables which relate solely to the Deliverables not complying with the Specification. “Reportable Errors” do not include any other type of error or defect in the Deliverables.
Service Provider means Butterfly Internet Pty Ltd, ACN 121 334 503, ABN 13 121 334 503 of Level 2, 364-372 Lonsdale St, Melbourne Victoria 3000.
Service Provider Works means any computer software, data, images, sounds, cinematographic films, multimedia or any other work, item or thing which the Service Provider creates prior to or during the conduct of any Project and the creation of the Deliverables
Specification means the specification of requirements for the creation, delivery and implementation of the Deliverables which is set out in the Proposal or separately agreed in writing by the parties
Support Services means the provision of any support by the Service Provider to the Client in respect of the Deliverables
Supported Works has the meaning given in clause 10.2(a)
Term means the period of 12 months commencing on the Commencement Date
Time and materials means the Project scope is quoted on an hourly basis. The Client agrees to pay the Service Provider for the time taken to perform the work and for materials used in development for example software or travel expenses.
User Acceptance Testing means the process of the Client testing the Deliverables to determine whether or not the Deliverables meet the requirements of the Specification. This process is detailed in provision 5 below.
In this Agreement unless the context otherwise requires:
(a) A reference to the singular includes the plural and vice versa;
(b) A reference to a gender includes all genders;
(c) A reference to a document (including this Agreement) is a reference to that document (including any Schedules and Annexures) as amended, consolidated, supplemented, novated or replaced;
(d) A reference to an agreement includes any deed, agreement or legally enforceable arrangement;
(e) A reference to parties means the parties to this Agreement and to a party means a party to this Agreement;
(f) A reference to a person includes an individual, other body corporate, association, partnership, firm, joint venture, trust or government agency and the person's successors, permitted assigns, substitutes, executors and administrators;
(g) A reference to a law:
(i) includes a reference to any constitutional provision, subordinate legislation, treaty, decree, convention, statute, regulation, rule, ordinance, proclamation, by-law, judgment, rule of common law or equity or rule of any applicable stock exchange;
(ii) is a reference to that law as amended, consolidated, supplemented or replaced; and
(iii) is a reference to any regulation, rule, ordinance, proclamation, by-law or judgment made under that law;
(h) A reference to time is a reference to Melbourne time;
(i) A reference to currency is to Australian dollars;
(j) Headings are for convenience only and are ignored in interpreting this Agreement;
(k) If a period of time is specified and dates from, after or before, a given day or the day of an act or event, it is to be calculated exclusive of that day;
(l) If a payment or other act must (but for this clause) be made or done on a day which is not a Business Day, then it must be made or done on the next Business Day;
(m) The words "including" or "includes" mean "including but not limited to" or "including without limitation"; and
(n) Where a word or phrase is defined, its other grammatical forms have a corresponding meaning.
1.3 Conflict between these terms and the Proposal
If there is any conflict between these terms and conditions and the Proposal, then these terms and conditions will prevail to the extent of the conflict. Notwithstanding the forgoing, if any part of a Proposal is expressly stated to override any part of this Agreement, then that part of the Proposal will take precedence over that part of this Agreement.
2. ENGAGEMENT OF THE SERVICE PROVIDER
(a) The Client hereby engages the Service Provider to deliver one or more Projects to the Client and to deliver the Additional Services, in accordance with and subject to the terms and conditions of this Agreement and the particulars of each Proposal.
(b) This Agreement will commence on the Commencement Date and terminate as specified in clause 13.
3. UNDERTAKING A PROJECT
(a) A Project will commence once both parties have signed a Proposal which relates to the Project and the deposit received by the Service Provider as specified in the Payment Schedule.
(b) The Client agrees that the Service Provider is under no obligation to undertake any future Project for the Client and that the Service Provider may refuse to do so for any reason whatsoever.
4. DELIVERING A PROJECT
4.1 Duties of the Service Provider
Following the commencement of a Project, the Service Provider will use reasonable endeavours to:
(a) Create, implement and deliver Deliverables, in accordance with the Specification;
(b) Meet any due dates in respect of the delivery of the Project as specified in the Project Charter; and
(c) Undertake any tasks required of the Service Provider as set out in the Specification and the Project Charter.
4.2 Duties of the Client
The Client agrees that it will:
(a) Undertake any work required of it as specified in the Proposal, the Project Charter or Specification;
(b) Provide the Service Provider with all information and materials requested by the Service Provider which the Service Provider considers necessary for the delivery of a Project and the creation, modification and implementation of the Deliverables;
(c) Provide the Service Provider with access to the Client's staff which the Service Provider reasonably requests for the purpose of delivering a Project; and
(d) Answer promptly to all queries placed by the Service Provider in relation to a Project.
4.3 Extension of due dates
The Client agrees that:
(a) The due dates set out in the Project Charter are a guide only and the Service Provider will not be liable or responsible for any failure to meet the due dates; and
(b) Any due dates of the Service Provider which are set out in the Project Charter will be automatically extended in relation to any delay which is caused by:
(i) Any act or omission of the Client or their agents or employees;
(ii) Any change to the Specification or Project Charter;
(iii) The Client failing to answer correctly any query placed by the Service Provider;
(iv) Any assumptions made by the Service Provider at the time it agreed to undertake the Project (including assumptions specified in the Proposal) not holding true;
(v) Any act or omission of a third party beyond the reasonable control of the Service Provider; or
(vi) Any Act of God.
5. USER ACCEPTANCE TESTING AND DELIVERY
5.1 User Acceptance Testing
(a) The Client will undertake User Acceptance Testing of the Deliverables upon notification by the Service Provider. Unless specified to the contrary in the Project Charter, the Client will have 10 business days in total to complete User Acceptance Testing over two rounds of review. The first round of User Acceptance Testing is to be completed within 5 business days from initial notification from the Service Provider that the Deliverables are ready for User Acceptance Testing. The Service Provider then has a period of time to complete changes from the first round of testing. This is followed by the second and final round of User Acceptance Testing by the Client, which must be completed within 5 business days of notification by the Service Provider.
(b) For the purposes of this clause, notification of the Deliverables will take place when the Service Provider sends notification via email to the Client that the Deliverables have been set up by the Service Provider for the Client to commence User Acceptance Testing.
5.2 Rectification of errors found during User Acceptance Testing
(a) The Service Provider will, for no charge to the Client, rectify any Reportable Errors which are found by the Client during User Acceptance Testing.
(b) All Reportable Errors must be reported to the Service Provider within 5 business days following the notification of commencement of a round of User Acceptance Testing. A failure to report a Reportable Error within this time frame means that the Reportable Error will not be addressed by the Service Provider during the User Acceptance Testing period.
(c) For the avoidance of doubt, the Service Provider is not under any obligation to rectify any error or defect in the Deliverables which are not Reportable Errors.
(a) User Acceptance Testing will be deemed to have been passed and completed:
(i) At the conclusion of User Acceptance Testing, if the Client’s User Acceptance Testing finds that there are no Reportable Errors in the Deliverables which the Service Provider is required to rectify under clause 5.2; or
(ii) If there are Reportable Errors notified by the Client under clause 5.2 and the Service Provider accepts that the errors are Reportable Errors, then:
(A) When all Reportable Errors are rectified by the Service Provider; or
(B) If any Reportable Errors are not rectified, if the Client agrees to accept the Deliverables and permit the Service Provider to rectify the Reportable Errors at a later date.
(b) At the completion of User Acceptance Testing, the Client will confirm in writing (or via email) to the Service Provider that the deliverables have passed User Acceptance Testing.
(a) If included within the Scope of Works, the Service Provider will provide training to the Client in the use of the Deliverables.
(b) The dates, times and content of any training will be separately agreed between the parties and/or may be specified in the Proposal or Project Charter.
7. WHEN A PROJECT IS DEEMED TO BE COMPLETED
A Project will be deemed to have been delivered and completed upon the completion of User Acceptance Testing and the provision of training under clause 6.
8. FURTHER PROJECTS
If following the completion of a Project, the Client requests that the Service Provider make any further modifications to the Deliverables or perform any further work in relation to the Deliverables, or create any new Deliverables then those modifications and/or further work will constitute a new Project, and the parties will:
(a) Sign a new Proposal in respect of the Project; and
(b) Otherwise follow the provisions of this Agreement in relation to the same.
9. CHANGE CONTROL
(a) The Proposal, Specification or the Project Charter may only be changed by agreement between the parties. The Client acknowledges that a change to the Proposal, Specification or Project Charter may result in an increase in the Fees payable to the Service Provider.
(b) The Client agrees that if:
(i) After commencing the Project:
(A) The Service Provider considers that the requirements of the Specification or the Deliverables are not technically feasible;
(B) The Project will require greater work than what was initially represented by the Client; or
(C) Reasonable assumptions made by the Service Provider when agreeing to undertake the Project (including assumptions stated in the Proposal) do not hold true; and
(ii) The Client refuses to agree to:
(A) Any changes in the Project Charter or Specification to make the Project technically feasible or to accommodate extra work required by the Service Provider; or
(B) Any increase in the Service Provider's Fees in relation to the delivery of the Project,
then the Service Provider may terminate its participation on a Project by written notice to the Client in which case the provisions of clause 13.2 will apply.
10. ADDITIONAL SERVICES
10.1 Hosting and Domain name Services
(a) If specified in the Proposal, the Service Provider will provide Hosting Services to the Client. The Hosting Services will be provided in accordance with the relevant particulars and requirements set out in the Proposal.
(b) If the Client as part of requesting Hosting Services also requests the addition of new functionality to the Supported Works, then the addition of that new functionality will be undertaken as a separate Project and the provisions of clause 8 will then apply.
(c)The Hosting Services will be provided by a Hosting Provider on the Service Provider’s behalf. The purpose of the Hosting Services will be to host, on a server provided by the Hosting Provider, the Deliverables or any other works set out in the Proposal (“Hosted Materials”).
(d) The Client acknowledges and agrees, that unless expressly stated to the contrary in the Proposal, the Service Provider has given no warranties or made any representation:
(i) In relation to any level of uptime or availability of the Hosting Services;
(ii) That the Hosting Services will be error free;
(iii) That the Hosting Services will involve any particular type of server, or any particular level of bandwidth;
(iv) That the Hosted Materials will be available at all times for members of the public, or customers of the client, to view and interact with; and/or
(v) That the Hosted Materials will be regularly backed up. The Client acknowledges that it is responsible for making its own backups of the Hosted Materials.
(e) All hosting and domain name services include an automatic price increase of 3% on 1 July each year.
(f) If domain name services have been included in the Proposal, the Client authorises the Service Provider to register new domain names or make changes to domain name delegation as required.
(g) If the Client registers domain names through the Service Provider then payment for the domain names is required on an annual basis until such time as the Client provides notice in writing to the Service Provider cancelling the domain name registration service by the Service Provider. Notice of cancellation must be received more than 30 days prior to the renewal date of the domain name. If cancellation is received after the Service Provider has renewed the domain name then payment in full is required up until the next domain renewal date. There are no refunds for periods paid or not used.
10.2 Support Services
(a) Where specified in the Proposal, the Service Provider will provide Support Services to the Client (“Supported Works”). The Support Services will be provided in accordance with the relevant particulars and requirements set out in the Proposal.
(b) All ongoing support options include an automatic price increase of 3% on 1 July each year.
(c) The Client acknowledges and agrees that, subject to anything to the contrary contained in a Proposal, the Service Provider has given no warranties or made any representation:
(i) That any Client queries will be responded to within any particular period of time; or
(ii) That any errors in the Supported Works will be rectified within any particular period of time.
10.3 Online marketing services
(a) Where indicated in the Proposal, the Service Provider will provide one or more online marketing services to the Client which are specified in the Proposal. These online marketing services may include, without limitation, the provision of email marketing and search engine optimisation.
(b) The online marketing services will be provided in accordance with the requirements set out in the Proposal.
(c) In respect of any email marketing campaigns which the Service Provider assists with, or conducts, the Client undertakes and warrants to the Service Provider that:
(i) It has the consent from all proposed recipients of the email marketing messages for them to be sent those messages; and
(ii) The undertaking of the proposed email marketing campaigns will comply with, and will not place the Service Provider in breach of, the Privacy Act 1988 (Cth) and the Spam Act 2003 (Cth).
(d) In respect of all online marketing services, the Client acknowledges that the Service Provider has provided no warranty or made any representation that the online marketing services will result in any increased sales or revenue to the Client or the enhancement of the Client’s goodwill.
10.4 SMS/MMS services
(a) Where indicated in the Proposal, the Service Provider will provide SMS and MMS services to the Client. These services will involve the provision of a service to allow the Client to send one or more SMS or MMS messages from an online interface or directly through Deliverables.
(b) In using SMS and MMS services, the Client undertakes and warrants to the Service Provider that:
(i) It has the consent from all proposed recipients of the SMS and MMS messages for them to be sent those messages; and
(ii) The sending of those messages will comply with, and will not place the Service Provider in breach of, the Privacy Act 1988 (Cth) and the Spam Act 2003 (Cth).
10.5 General consulting
(a) Where indicated on the Proposal, the Service Provider will provide and undertake services of a general nature which are not described above in accordance with the requirements as set out in the Proposal. Such services could include, without limitation, training, research and general consulting.
10.6 Term for the Additional Services
The provision of each Additional Service will be provided for the relevant term specified in the Proposal. If no such term is specified then:
(a) Hosting Services, Support Services and online marketing services will be provided on a month to month basis, until such time as either party terminates the provision of those services by the provision of one month’s written notice to the other party;
(b) In the case of SMS/MMS Services, these will be provided for the Term of this Agreement, but may otherwise be terminate at any time by either party providing one month’s written notice of termination to the other party; and
(c) In the case of general consulting services, these will be provided until such time as the relevant services are completed or they are terminated by either party providing one month’s written notice of termination to the other party.
11. INTELLECTUAL PROPERTY
11.1 Ownership of Intellectual Property Rights in the Deliverables
(a) Subject to clause 11.1(b), the Client will be the owner of all Intellectual Property Rights created as part of the Deliverables and the Service Provider hereby assigns such Intellectual Property Rights to the Client. An exception is any open source or third party owned software used in the Deliverables, which are governed by the Intellectual Property rights related to that specific software.
(b) The Service Provider will retain ownership of all Intellectual Property Rights in the Service Provider Works which the Service Provider:
(i) Created prior to the creation of the Deliverables; or
(ii) Created during the creation of the Deliverables, but which the Service Provider intends to use with its other customers and clients.
(c) If there is any ambiguity or uncertainty as to whether the Intellectual Property Rights in any particular part of the Deliverables is owned by the Service Provider or the Client, then the Service Provider’s determination in that regard will be final and binding on the parties.
(d) The Client hereby grants to the Service Provider, a royalty free, perpetual, irrevocable, worldwide, non-exclusive licence for the Service Provider to make any use whatsoever of the Intellectual Property Rights held by the Client in the Deliverables including, without limitation, including part or all of the Deliverables in any future works which the Service Provider produces for itself or its other customers or clients. The forgoing licence however will not apply to the Client IP which the Client supplies to the Service Provider for inclusion in the Deliverables.
(e) The Client consents to allow the Service Provider to use examples of the Deliverables (such as screenshots) as promotional material including on the Service Provider’s website. This may include the Client’s logo where appropriate. This usage is perpetual, irrevocable, royalty free and worldwide.
(f) The Client consents to the Service Provider inserting a link to the Service Provider’s website at the bottom of any Deliverables.
11.2 Client IP
(a) The Client irrevocably licences the Service Provider to use and incorporate the Client IP into the Deliverables.
(b) The Client warrants to the Service Provider that the Client has the requisite rights in the Client IP to enable the Service Provider to incorporate the Client IP into the Deliverables.
(c) The Client indemnifies the Service Provider against any loss, cost, expense or damage suffered or incurred by the Service Provider as a result of any legal proceedings instituted by a third party against the Service Provider, which arises directly or indirectly from the Client IP infringing the Intellectual Property Rights or other rights of the third party.
(d) The Service Provider acknowledges that nothing in this Agreement grants the Service Provider any ownership of the Intellectual Property Rights in the Client IP.
12. FEES AND EXPENSES
(a) The Client agrees to pay the Service Provider's Fees in accordance with their Payment Terms. If for any reason the Payment Terms are not agreed by the parties prior to work being undertaken by the Service Provider, then the Service Provider's Fees will be payable within 14 days of the date of the Service Provider invoice issued in respect of the Fees.
(b) The Client agrees that the Service Provider may charge interest at the rate of 2% above the rate specified from time to time in the Penalty Interest Rates Act 1983 (Vic) on any amounts owing by the Client which are not paid by the date they are due. Such interest will be payable on demand to the Service Provider.
(c)Where Time and materials is specified in the Payment Terms this means that the estimates provided in the proposal are not fixed quotations, and the hours recorded by the Service Provider are what is payable, along with any materials costs recorded by the Service Provider such as software licenses.
(d) Where Time and materials is specified in the Payment Terms the Service Provider will make reasonable efforts to inform the Client when hours used approach estimates made (such as in the Proposal), but the Client acknowledges that fees are payable as per 12.1 (c) without requiring separate express consent from the Client.
(e) The Client agrees that any instruction to the Service Provider to commence work in excess of estimates acknowledges that fees are payable for that work at the Service Provider’s hourly rate without requiring express consent from the Client. The Client’s agreement to work can be verbal, via email or in writing.
The Client will indemnify and pay the Service Provider all expenses which the Service Provider incurs in the delivery of a Project and which have been previously authorised by the Client or specified to be incurred in the Proposal.
All amounts payable by the Client to the Service Provider under this Agreement ("Consideration") are, unless expressly stated to the contrary, to be taken to be exclusive of any GST. The Client will, at the same time as paying the Consideration to the Service Provider, pay the Service Provider an additional amount on account of GST, such that after the deduction of GST, the Service Provider receives no less than the Consideration.
13. TERM AND TERMINATION
13.1 Term of this Agreement
(a) This Agreement commences on the Commencement Date and subject to clause 13.1(b), 13.1(c) and 13.1(d) terminates at the conclusion of the Term.
(b) At the conclusion of the Term, any relevant Additional Services will renew on a month to month basis unless either party terminates this Agreement by written notice to the other party which is given at least 30 days prior to the conclusion of the then current Term (as the case may be).
(c) Domain names and SSL certificates are on an annual basis until cancelled as per clause 10.1.
(c) If this Agreement is terminated under clause 13.2 then the provisions of clause 13.4 will apply in relation to any incomplete Projects and Additional Services existing as at the date of termination.
13.2 Termination of any one Project or Additional Service
Where the Service Provider's delivery of a Project or an Additional Service is terminated by a party in accordance with this Agreement, then:
(a) Such termination will not affect the Service Provider's delivery of other Projects or the provision of other Additional Services;
(b) In relation to a terminated Project, the Client will pay the Service Provider:
(i) All Fees due but unpaid as of the date of termination;
(ii) All Fees which are accrued but for which the Service Provider is yet to invoice as at the date of termination; and
(iii) Where any Fees are payable upon the completion of specific work or a milestone, then a reasonable amount determined by the Service Provider representing the amount of work undertaken in relation to that specific work or milestone until the date of termination; and
(c) In relation to terminated Additional Services which are terminated by the Client prior to the conclusion of their term (as determined under clause 10.6), the Client will pay the Service Provider a reasonable amount determined by the Service Provider representing the amount of the Fees which the Client would have paid in respect of those Additional Services had termination of the Additional Services not occurred.
13.3 Termination for breach or insolvency
(a) A party may terminate this Agreement if the other party breaches any of its obligations under this Agreement, and fails to remedy that breach after receiving 30 days written notice from the non-breaching party requiring the other party to remedy that breach.
(b) A party may terminate this Agreement at any time on written notice to the other party if the other party is or becomes insolvent or if the other party has a liquidator, administrator, receiver, receiver and manager or an official manager appointed over the other party or its assets.
13.4 What happens after termination
Upon termination of this Agreement:
(a) The Service Provider may in its sole discretion cease work on all Projects and all Additional Services which it is working on or providing as at the date of termination; and
(b) The Client will pay the Service Provider:
(i) All Fees due but unpaid as of the date of termination;
(ii) All Fees which are accrued but for which the Service Provider is yet to invoice as at the date of termination;
(iii) If any Fees are payable upon the completion of specific work or milestones, then a reasonable amount determined by the Service Provider representing the amount of work undertaken in respect of that specific work or milestones until the date of termination; and
(iv) Where this Agreement is terminated during the term of the provision of any Additional Services (as determined under clause 10.6) then a reasonable amount determined by the Service Provider representing the amount of the Fees which the Client would have paid in respect of those Additional Services had termination of this Agreement not occurred.
14. LIABILITY OF THE SERVICE PROVIDER
(a) The Client acknowledges that the Service Provider has not made and will not make any express or implied warranties in relation to the delivery of Projects, the provision of the Deliverables, the Additional Services or any other goods or services provided by the Service Provider under this Agreement, other than those warranties expressly contained in this Agreement. Subject to this clause 14, any term that would be implied into this Agreement, including without limitation any condition or warranty, is hereby excluded.
(b) Subject to the Client's rights arising under the Competition and Consumer Act 2010 (Cth) or other similar consumer legislation, the Client agrees that the Service Provider will not be liable in respect of any claim by the Client (whether contractual, tortuous, statutory or otherwise) for any special, incidental, indirect or consequential damages or injury including, but not limited to, any loss of profits, contracts, revenue or data arising out of or in connection with the delivery of Projects, the provision of the Deliverables, or the Additional Services or the provision of any other goods or services under this Agreement and whether as a result of any breach or default by the Service Provider or through any negligence of the Service Provider.
(c) The maximum liability of the Service Provider under this Agreement for any and all breaches of this Agreement and for any negligence in relation to this Agreement will not exceed the following amounts:
(i) If the breach or negligence relates to any one particular Project, then the Service Provider's maximum liability will be the amount of Fees paid by the Client solely in respect of that Project at the time of the breach or negligent act or omission;
(ii) If the breach or negligence relates to any one particular type of Additional Services, then the Service Provider's maximum liability will be the amount of Fees paid by the Client solely in respect of those Additional Services at the time of the breach or negligent act or omission; or
(iii) If the breach or negligence relates to any other provision of this Agreement, then the Service Provider's maximum liability will be the total amount of Fees paid by the Client under this Agreement at the time of the breach or negligent act or omission.
(d) If the Competition and Consumer Act 2010 (Cth) (or analogous legislation) applies to this Agreement and permits the limitation of liability for breach of warranty implied by statute, the liability of the Service Provider is limited, at the option of the Service Provider, to:
(i) In the case of goods, any one or more of the following:
(A) The replacement of the goods or the supply of equivalent goods;
(B) The repair of the goods;
(C) The payment of the cost of replacing the goods or of acquiring equivalent goods; or
(D) The payment of the cost of having the goods repaired; and
(ii) In the case of services:
(A) The supplying of the services again; or
(B) The payment of the cost of having the services supplied again.
(e) Any of the terms and conditions of this Agreement which limit or exclude any term, condition or warranty, express or implied, or the liability of the Service Provider will apply to the extent permitted by law and will not be construed as excluding, qualifying or limiting the Client's statutory rights or remedies arising by virtue of the breach of any implied term of this Agreement where such exclusion, qualification or limitation would be prohibited by legislation.
Each party will keep confidential the Confidential Information of the other party and will only use that Confidential Information for the purposes of this Agreement. A party may only disclose or use Confidential Information of the other party:
(a) Where the Confidential Information used or disclosed is in the public domain (other than through a breach of this Agreement);
(b) Where the disclosure is required by law but only to the extent of that requirement;
(c) Where the disclosure is made to the other party's employees or contractors solely for the purposes of this Agreement and only where such employees or contractors are under an obligation of confidentiality on terms no less restrictive than this clause 15; or
(d) Where the Confidential Information is disclosed to the party's legal or professional advisors solely for the purposes of seeking advice and only where such advisors are under an obligation of confidentiality on terms no less restrictive than this clause 15.
16. GENERAL CLAUSES
(a) Subject to clause 9, this Agreement may only be amended by a document signed by each party.
(b) Unless otherwise specified, any notice given under this Agreement must be in writing and must be signed by the party giving the notice. Unless a later time is specified in a notice, the notice takes effect from the time it is received. A notice is taken to be received:
(i) In the case of a notice delivered by hand, when so delivered;
(ii) In the case of a notice sent by pre paid post, on the third clear Business Day after the date of posting; and
(iii) In the case of a notice sent by facsimile, upon the receipt by the sender of a transmission report from the despatching facsimile machine which confirms that all of the pages comprised in the notice have been successfully sent to the receiving party's facsimile number.
(c) This Agreement may be executed in counterparts and those counterparts, when taken together will constitute one instrument.
(d) An obligation imposed on two or more persons binds each of them jointly and severally. A right held under this Agreement by two or more persons may be exercised by them jointly or severally.
(e) The Service Provider will not be liable for any failure to perform its obligations under this Agreement or any delay in performance where such failure or delay is caused by an Act of God.
(f) Neither party is the partner, agent, employee or representative of any other party and neither party has the power to incur any obligations on behalf of any other party.
(g) Each party agrees to do all acts, matters and things, including the execution of all documents and agreements required for the purposes of this Agreement.
(h) There are no other representations, promises, warranties, covenants or undertakings between the parties and this Agreement together with each Proposal supersedes all previous agreements in respect of its subject matter and embodies the entire agreement between the parties.
(i) The covenants, conditions, provisions and warranties contained in this Agreement will not merge or terminate upon completion of the transactions contemplated by this Agreement, but to the extent that they have not been fulfilled and satisfied or are incapable of having effect will remain in full force and effect.
(j) Each of the parties to this Agreement will be responsible for its own costs and expenses of and in connection with the negotiation, preparation, execution, stamping, registration and completion of this Agreement and of any document contemplated by this Agreement.
(k) A provision of or a right created under this Agreement may not be waived except in writing signed by the party or parties to be bound by the waiver.
(l) No single or partial exercise by any party of any right, power or remedy under this Agreement will preclude any other or further exercise of that or any other right, power or remedy. The rights, powers or remedies provided in this Agreement are cumulative with and not exclusive of any rights, powers or remedies provided independently of this Agreement.
(m) If any provision of this Agreement is judged invalid or unenforceable for any reason whatsoever by a court of competent jurisdiction, such invalidity or unenforceability (unless deletion of such provision would materially adversely affect one of the parties) will not affect the operation or interpretation of any other provision of this Agreement to the intent that the invalid or unenforceable provision will be treated as severed from this Agreement.
(n) This Agreement is for the benefit of the parties and 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 party.
(o) The parties acknowledge and agree that no rule of construction applies to the disadvantage of a party because that party was responsible for the preparation of this Agreement or part of it.
(p) This Agreement will be construed in accordance with and will be governed by the laws in force in the State of Victoria. Each of the parties irrevocably submits to and accepts the exclusive jurisdiction of any of the Courts of the State of Victoria or the Commonwealth of Australia and any courts of appeal from these courts.