STANDARD TERMS AND CONDITIONS
This Agreement sets out the agreed terms and conditions of the agreement reached between QTECX and the Client.
The Principal Terms and Conditions (including any Special Conditions detailed in the Principal Terms and Conditions) and these Standard Terms and Conditions constitute “this Agreement”. In the event of and to the extent of any conflict between the Principal Terms and Conditions and any provisions set out in the Standard Terms and Conditions, the Principal Terms and Conditions will prevail. Any terms used in these Standard Terms and Conditions which are defined in the Principal Terms and Conditions will have the meaning as set out in the Principal Terms and Conditions.
TERMS AND CONDITIONS
1. Definitions
In this Agreement unless the contrary intention appears:
Agreement: means this Agreement as constituted by the Principal Terms and Conditions and Standard Terms and Conditions and any other annexure, attachments and schedules and any subsequent written amendments;
QTECX: means the Company, its agents, consultants, subsidiaries, successors, employees, contractors and/or any other person, company, related entity or entity instructed by QTECX to undertake the Services set out in the Principal Terms and Conditions to this Agreement on its behalf.
Client: means the party named in the Principal Terms and Conditions, its subsidiaries and its successors and permitted assigns;
Commencement Date: means the date specified in the Principal Terms and Conditions;
GST: has the same meaning as in the A New Tax System (Goods and Services) Act 1999;
Intellectual Property: means all industrial and intellectual property rights anywhere in the world, whether registered or unregistered, including patent rights, trade mark rights, copyright (but excluding Moral Rights), rights in relation to inventions, trade names, business names, company names, indications of origin, designs, confidential information or know-how, any right of registration, renewal and extension of such rights and all other intellectual property as defined in article 2 of the Convention Establishing the World Intellectual Property Organisation 1967;
Moral Rights: means moral rights as described in Part IX of the Copyright Act 1968 (Cth) and any analogous rights arising under statute that exist, or may come to exist, anywhere in the world;
Fee: means the amount and/or rates set out in rates for the provision of the Services as specified in the Principal Terms and Conditions;
Related Entity: means any related body corporate as defined in the Corporations Act 2001;
Services: means the services set out in the Principal Terms and Conditions of this Agreement and any subsequent agreed variations in writing (including any part of the specified services and the results of the specified services);
Tax Invoice: has the same meaning as in the A New Tax System (Goods and Services) Act 1999;
2. Interpretation
2.1. In this Agreement unless the contrary intention appears:
2.1.1. A reference to this Agreement or another instrument includes any variation of or replacement of either of them, annexure, attachment or schedule;
2.1.2. The singular includes the plural and vice versa;
2.1.3. The word "person" includes a firm, a body corporate or an unincorporated association or authority;
2.1.4. A reference to a person includes a reference to the person's executors, administrators, successors, substitutes (including but not limited to persons taking by novation) and assigns;
2.1.5. References to clauses and/or sub-clauses are references to sub clauses and clauses in this Agreement;
2.1.6. All statues and legislations referred to in this Agreement are Australian statutes and legislation.
2.2. Headings are inserted for convenience and do not affect interpretation of this Agreement.
3. Provision of Services
QTECX shall provide the Services set out in the Principal Terms and Conditions.
4. Fee, Invoicing and Payment
4.1. The Client will pay QTECX the Fee set out in the Principal Terms and Conditions.
4.2. In addition to the Fee and subject to the provision by QTECX of a Tax Invoice, the Client will, if applicable, pay an additional amount on account of GST, such amount to be calculated by multiplying the price payable by the Client for the services by the prevailing GST rate.
4.3. Subject to clause 11, if the Client fails to make any of the payments set out in this clause 4, the Client shall pay an administration charge of US$200 to cover QTECX’s cost for recovery of the amount due.
5. Acknowledgements and Warranties
5.1. The Client and QTECX acknowledge and warrant the following:
5.1.1. QTECX warrants that the Services will successfully be operatable on the Creatio application version it will be deployed on;
5.1.2. the Client acknowledges that in the event that Creatio releases an updated version of Creatio (“Updated Creatio Version”), QTECX does not warrant that the Services will be compatible with the Updated Creatio Version. It is the responsibility of the Client to request updated Services from QTECX to enable the Services to be compatible with and operate with the Updated Creatio application. Such updated service will incur an additional fee;
5.1.3. QTECX warrants that the Services will be performed substantially in accordance with the Services demonstration provided by QTECX. QTECX does not warrant that the use of the Services will be uninterrupted or error-free;
5.1.4. QTECX may at its discretion provide limited support to existing clients.
6. For the avoidance of doubt, nothing in this Agreement nor the performance of the Services shall confer any entitlement to the Client to the services highlighted in clause 5.
7. Liability and Indemnities
7.1. The Client will be liable for and will indemnify QTECX and keep QTECX indemnified from and against any liability and/or any loss or damage of any kind whatsoever arising directly or indirectly from any material breach of any of the terms or conditions of this Agreement.
7.2. Neither party shall be liable to the other party from any indirect, special, punitive or consequential damages arising from this Agreement.
7.3. Each indemnity in this Agreement is a continuing obligation separate and independent from any other obligation and survives the termination of this Agreement.
8. Reverse Engineering
8.1. The Client agrees no attempt will be made by the Client, the Client’s employees, contractors, sub-contractors or its agents to reverse-engineer, disassemble, decompile, attempt to derive the source code of, or in any way modify or copy or recreate the Services including, but not limited to, database structure or data, provided to the Client.
8.2. QTECX may immediately terminate this Agreement if any attempt is made, as highlighted in clause 8.1, without the prior written consent of QTECX.
9. Intellectual Property
9.1. Title to any software that may be installed, operating systems, or any software program that QTECX may write or re-write and/or that may be installed by QTECX, including all rights to patents and copyrights applicable thereto, shall at all times remain with QTECX, and is protected by national and international law.
9.2. All Intellectual Property such as software programs, codes, operating systems, designs, know-hows, Copyrights, and the like created by the QTECX during the course of performing the Services shall be deemed to be assigned to and become the absolute property of QTECX immediately upon their creation.
9.3. QTECX hereby warrants that it has the right to use and allow the Client, subject to the User Licence provisions set out in the Principal Terms and Conditions, the use of any software that may be installed on the Client’s computer or cloud instance provided that the software is used solely on the computer or the cloud instance that it is installed on.
9.4. Unless otherwise agreed in writing, all Intellectual Property Rights in Confidential Information provided by QTECX including but not limited to software design specifications and workings and technical operating system information, networking, shall remain the property of QTECX, and the Client shall not disclose such information to any person in any way, without QTECX’s prior written consent.
9.5. The parties agree to take all reasonable steps to protect subsequent Intellectual Property Rights created, if any, by QTECX under this Agreement.
10. Confidential Information
10.1. Each party undertakes that it will not, except in the proper course of its duties under this Agreement or as required by law or by the other party, disclose to any person any confidential information of or relating to the other party of which it has become possessed as a result of this Agreement or the negotiation preceding this Agreement including, but not limited to, the terms of this Agreement.
10.2. Nothing in this Agreement prohibits disclosure of information which:
10.2.1. is in the public domain;
10.2.2. after disclosure to a party becomes part of the public domain otherwise than as a result of the wrongful act of that party;
10.2.3. is received from a third party provided that it was not acquired directly or indirectly by that third party from a party to this Agreement;
10.2.4. is required to be disclosed by Court order, law or any government or governmental body, authority or agency having authority over a party.
10.3. The obligations under this clause 10 survive the termination of this Agreement.
10.4. The terms of this Agreement may be disclosed to:
10.4.1. any legal, financial or other adviser of a party;
10.4.2. the auditor of a party;
10.4.3. a bona fide prospective purchaser of a party or the business of that party provided that such bona fide prospective purchaser agrees to keep the terms of this Agreement confidential in accordance with this clause 10.
11. Termination
11.1. Without prejudice to either party's rights under any other provision of this Agreement, if any of the following events occurs, either party will be entitled to terminate this Agreement by way of service of a written notice on the other party (the Recipient):
11.1.1. where the Recipient enters into liquidation except for the purposes of solvent amalgamation or reconstruction;
11.1.2. where the Recipient ceases to carry on business;
11.1.3. where for any reason this Agreement is or becomes wholly or partially void, voidable, ineffective or unenforceable and that event has or could have a substantial material impact on the relationship between the parties.
11.2. Without prejudice to any of QTECX’s rights or remedies under this Agreement, QTECX may, if the Client has breached this Agreement, including but not limited to the failure to pay QTECX for the Services, serve upon the Client in writing a Notice requiring the Client to remedy such breach within 30 days of service of such Notice.
11.3. Further to clause 11.2, should the Client fail to remedy such breach within 30 days of service of the Notice, then QTECX may suspend part or all of the Services to be provided to the Client until such time as the Client rectifies such breach to the reasonable satisfaction of QTECX.
11.4. Either party may terminate this Agreement at any time by giving the other party no less than thirty (30) days written notice (“Notice of Termination”) provided that the Client may not terminate this Agreement, or serve a Notice of Termination, until such time as all monies due and payable to QTECX have been paid in full.
12. General
12.1. Assignment
Neither this Agreement nor any rights or obligations of the Agreement may be assigned or otherwise transferred by the Client without the prior written permission of QTECX.
12.2. Survival
Any provisions of this Agreement which by their nature extend beyond termination shall survive such termination. Termination or cancellation of this Agreement shall not affect the rights and obligations of the party accrued prior to termination.
12.3. Severability
If any provision of the Agreement should be held to be invalid in any way or unenforceable, the remaining provisions must not in any way be affected or impaired. This Agreement must be construed so as to most nearly give effect to the intent of the parties as it was originally executed.
12.4. Governing law
This Agreement is governed by the laws of the State of New South Wales, Australia and the parties submit to the jurisdiction of the courts of that State.