Mosmar Terms of Business
This is a legally binding agreement between you and Mosmar Pty Ltd ACN 129 211 767 (us/we/our) which sets out the terms and conditions upon which we will supply the Services to you.
In this Agreement:
Agreement is defined in clause 2.2;
Associates means officers, directors, employees and subcontractors;
Client Materials mean any documents, materials, items or things to be supplied by you to us, as specified in the Proposal or reasonably requested by us;
Confidential Information means all information of a party which would reasonably be regarded as confidential, disclosed to the other party before or after the date of this Agreement, but does not include information which is in, or comes into, the public domain other than by a breach of this Agreement, or which is independently known to the other party as evidenced by its written records;
Contract Materials means all materials created by us in performing the Services;
Electronic Data means facts, concepts and information converted to a form useable for communications, display, distribution, interpretation or processing by electronic and electromechanical data processing or electronically controlled equipment and includes programmes, software and other coded instructions for such equipment;
Fee means the professional fee specified in the Proposal, excluding any expenses;
GST means the tax imposed by A New Tax System (Goods and Services Tax) Act 1999 and A New Tax System (Goods and Services Tax) Transition Act 1999 and related tax imposition Acts of the Commonwealth of Australia;
Pre-Existing Materials means any materials existing at the date of this Agreement;
Proposal means the proposal annexed to this Agreement provided by us to you specifying the Services, the Fee and other relevant matters;
Services means the goods or services specified in the Proposal;
Start Date means the start date specified in the Proposal; and
Terms of Business means the terms and conditions set out in this document.
2.1 The Proposal will be valid for a maximum of 30 days from the date of the Proposal. We reserve the right to withdraw the Proposal at any time at our discretion. If we do not receive a signed copy of the Proposal from you before the expiry date, the Proposal will be void and have no effect.
2.2 An agreement between you and us is formed when we receive a signed copy of the Proposal from you before the expiry date, and consists of the Proposal and the Terms of Business (Agreement).
2.3 For the purpose of resolving any inconsistency between the various terms and conditions specified in clause 2.2, the order of precedence is:
(a) the Proposal; and
(b) the Terms of Business.
This Agreement will start on the Start Date and continue until the Services have been completed, unless terminated earlier in accordance with this Agreement.
4.1 We will perform the Services in accordance with this Agreement.
4.2 If you request any change to be made to the scope of the Services after the date of this Agreement, you agree that we may adjust the Fee and any timeframes by written notice to take account of the changes.
4.3 We are not liable for failing to comply with this Agreement as a result of events or circumstances beyond our control (including failure to provide access to the Client’s premises and systems, and use of the Contract Materials beyond the intended scope specified in the Proposal). If such events cause a delay in the supply of the Services, you agree to extend any timeframes specified in the Proposal to accommodate the delay.
5.1 In consideration of our performance of the Services, you must pay us the Fee (and any reasonable expenses incurred by us in supplying the Services).
5.2 Unless specified otherwise in the Proposal:
(a) on the first business day of each calendar month, we will send you a tax invoice for the performance of the Services in the previous month;
(b) you must pay the tax invoice within 14 days of the date of the invoice; and
(c ) the Fee is exclusive of GST. If GST is payable on any supply made by us under this Agreement, you must pay us an additional amount equivalent to the GST at the time that payment to us is due.
5.3 If you fail to pay an invoice when it is due, we may suspend performance of the Services and charge interest on the overdue amounts at 2% above the corporate overdraft rate of the Bank of Western Australia (Bankwest).
5.4 We reserve the right to increase our Fee on each anniversary of the Start Date by written notice to you.
5.5 If after the completion of the Services, you require any additional services, we will charge you for the additional services at the rates specified in the Proposal.
- Your obligations
(a) allow us and our Associates reasonable access to the site(s) and/or systems specified in the Proposal for the purpose of performing the Services;
(b) provide the Client Materials and any information reasonably required by us to assist us in performing the Services; and
© obtain all necessary consents for us to use, modify and reproduce the Client Materials for the purpose of performing the Services.
- Intellectual Property
7.1 The parties agree that the ownership of the intellectual property rights in any Pre-Existing Materials will not be altered, transferred or assigned.
7.2 Either party grants to the other party a non-exclusive or royalty-free licence to use and reproduce the first party’s Pre-Existing Materials to the extent that such materials form part of, or are integral to, the Contract Materials.
7.3 You agree that the ownership of all intellectual property rights in the Contract Materials vest in us.
7.4 We grant you a royalty-free, irrevocable, perpetual, non-exclusive licence to use the Contract Materials for the purpose set out in the Proposal.
- Confidentiality and Privacy
The parties will:
(a) keep confidential the Confidential Information;
(b) use the Confidential Information for the sole purpose of performing its obligations under this Agreement; and
© not disclose the Confidential Information to any person other than those Associates who need to know the Confidential Information.
9.1 Either party may terminate this Agreement at any time with 10 business days’ written notice to the other party.
9.2 Either party may terminate this Agreement if the other party fails to remedy a breach within 5 business days of a notice from the first party requiring it to do so.
9.3 If this Agreement is terminated under clause 9, you must pay us all amounts owing to us up to the date of termination of this Agreement, including any reasonable costs incurred by us as a result of the termination of this Agreement (including third party cancellation fees and administrative costs).
10.1 We exclude liability to you for:
(a) the communication, display, distribution or publication of Electronic Data that results in libel, slander, defamation of character or invasion of right of privacy;
(b) total or partial destruction, distortion, erasure, corruption, alteration, misinterpretation or misappropriation of Electronic Data;
© error in creating, amending, entering, deleting or using Electronic Data;
(d) total or partial inability or failure to receive, send, access or use Electronic Data for any time or at all; and
(e) loss of profit, loss of revenue, loss of business opportunities, and any costs, expenses or liability incurred by you as a result of us complying with your directions or requirements; and
(f) any indirect or consequential loss arising in connection with this Agreement.
10.2 To the extent permitted by law, our liability for any claim arising directly or indirectly from a breach of a term or condition implied by statute (at our option) is limited to the refund of the Fee or the re-supply of the Services, at our sole discretion.
10.3 Our total aggregate liability in connection with this Agreement and whether based upon warranty, contract, statute, tort (including negligence) will not exceed the Fee paid to us by you under this Agreement.
11.1 Nothing in this Agreement will be taken as giving rise to a relationship of employment, agency or partnership.
11.2 We may, in our sole discretion, sub-contract the performance of any part of the Services to any third party.
11.3 This Agreement contains the entire understanding between the parties concerning the subject matter of the Agreement and supersedes all prior communications.
11.4 Except as specified otherwise, this Agreement cannot be amended or varied except in writing and signed by the parties.
11.5 If any term or provision of this Agreement is held by a court to be illegal, invalid or unenforceable under the applicable law, that term or provision will be severed from this Agreement and the remaining terms and conditions will be unaffected.
11.6 Any dispute or difference arising out of or in connection with this Agreement shall be submitted to arbitration in accordance with, and subject to, the Institute of Arbitrators and Mediators Australia Fast Track Arbitration Rules. The seat of the arbitration will be Sydney, Australia.
11.7 This Agreement is governed by, and construed in accordance with the laws of New South Wales.
The following clauses apply only to Services involving the delivery of a customised solution.
12. Acceptance Testing
12.1 The Services will be subject to acceptance by you, based on the acceptance tests as agreed between the parties.
12.2 You must, within 5 business days of the delivery of the Services and acting reasonably:
(a) accept the Services by notifying us of your acceptance; or
(b) reject the Services, in which case you must notify us of the reasons for rejection.
12.3 If the Services fail an acceptance test, you may:
(a) waive the requirement for acceptance testing;
(b) ask us to fix the Services so that they meet the acceptance test; or
© accept the Services on the condition that we set a timeframe to fix the fault.
12.4 If you ask us to fix the Services in accordance with clause 12.3, we will do so at no additional charge to you.