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Terms and Conditions

The Terms and Conditions describe the general conditions for any consulting or support services supplied by XLAutomation. This includes project consulting and ongoing support agreements

General Terms and Conditions

This is an “Agreement” between you and XLAutomation. By approving any project or support proposal, you acknowledge that you have read and accept the following terms and conditions.

1        Services

1.1        Provide Services

XLAutomation will provide the Services on the terms of this agreement

1.2        Milestones and Deliverables

XLAutomation will use reasonable endeavours to provide the Services and Deliverables within the Service Period and in accordance with any Milestones.

1.3        XLAutomation Personnel

The services will be carried out by XLAutomation personnel. If for any reason any of the XLAutomation personnel become unavailable, clause 9.9 (Force Majeure) applies and XLAutomation will use reasonable endeavours to secure a replacement acceptable to the Client. If not acceptable replacement is available or the parties cannot agree an acceptable replacement within 30 days, either party may terminate this agreement with immediate effect by notice to the other party.

1.4        Additional Services

XLAutomation will obtain written approval from the Client before carrying out additional work to the Services or incurring additional costs other than as agreed with the Client as part of the Fees.

2        Clients Obligations

The Client agrees to :

  1. cooperate with XLAutomation during the provision of the Services;
  2. provide XLAutomation with any required Client Materials and the right to use the Client materials and any other assistance, information, data, equipment, resources or materials as may be reasonable required by XLAutomation
  3. notify XLAutomation of any unusual risks or dangers in the Client Materials that the Client is aware of.

3        Fees

3.1        Invoices

XLAutomation will invoice the Client the Fees as set out in the Forecast of Costs and Service Period. The invoice will be in the form of a tax invoice.

3.2        Payment Terms

The client agrees to pay XLAutomation within 14 days of receiving an invoice. Any amount in the Fees which is not paid within 14 days will attract interest applied at the Bank Bill Swap Reference Rate for 90 days as published in the Australian Financial Review on the day interest is claimed.

3.3        Expenses

The Client agrees to pay XLAutomation for expenses reasonably incurred by XLAutomation in providing the services which as set out as part of the Fees or otherwise approved by the Client.

4        Intellectual Property Rights

4.1        Deliverables

The Client retains all Intellectual Property Rights in the Deliverables that are provided to XLAutomation as part of the Services.

4.2        Client Materials

The Client grants a non-transferable, non-exclusive licence to XLAutomation for the Service Period to use the Client Materials for the sole purpose of providing the Services. The Client warrants that it is entitled to provide the Client Materials in accordance with this agreement and indemnifies XLAutomation against any damages, liabilities, loss or costs arising from any claim made against XLAutomation contrary to this warranty or based on a claim that the Client Materials infringe any Intellectual Property Rights of third parties

5        Confidentiality

5.1        Use of Confidential Information

Unless a party obtains the prior written approval of the other party to disclose Confidential Information, each party must:

  1. maintain the secrecy of the others Confidential Information :
  2. not use the others Confidential Information except as required for the performance of this agreement;
  3. not disclose the others Confidential Information to any other person other than employees or advisors who need to know it in order to perform that party’s obligations under this agreement; and
  4. use reasonable endeavours to ensure that is employees or advisors comply with (a), (b) and (c).
5.2        Required by law

Each party may disclose the other’s Confidential Information if required by law but, if possible, it must inform the other party first and use reasonable endeavours to limit the terms of that disclosure as reasonably requested.

6        Warranties and liability

6.1        Due care and skill

XLAutomation warrants that the Services will be performed with due care and skill and in a professional manner consistent with information technology industry practice.

6.2        Breach of warranty

For breach of the warranty in clause 6.1 (Due care and skill), the Client’s exclusive remedy, and XLAutomation’s entire liability, will be, if permitted by law, limited (at XLAutomation’s option) to re-performance of the Services or a refund of the Fees paid to the extent of the deficiency in performance.

6.3        Implied warranties

Except as stated in clause 6.1 (Due care and skill) and subject to clause 6.4 (Statutory terms), XLAutomation excludes all implied terms, representations and warranties whether statutory or otherwise, relating to the subject matter of this agreement.

6.4        Statutory terms

Where any statute implies in this agreement any term, and that statute voids or prohibits provisions under a contract which exclude or modify the operation of such term, such terms is deemed to be included in this agreement. However, XLAutomation’s liability for breach of such term will be, if permitted by law, limited (at XLAutomation’s option) to re-supply of the relevant Services or the payment of the cost of re-supplying the relevant Services.

6.5        Liability limit

Subject to clause 6.4 (Statutory terms), XLAutomation’s total liability to the Client for loss or damage of any kind, however caused, due to XLAutomation’s negligence, breach of contract, breach of any law, in equity, under indemnities or otherwise, arising from or in any way related to this agreement or the Services is limited to the amount equivalent to the Fees paid by the Client under this agreement.

6.6        Consequential loss

Subject to clause 6.4 (Statutory terms), XLAutomation is not liable to the Client for consequential or incidental damages (including loss of profits, revenue, goodwill or opportunities) in contract, tort, under any statute or otherwise (including negligence) arising from or in any way related to this agreement or the Services.

6.7        Contributory negligence

Each party’s liability under this agreement is reduced to the extent that any damages, liability, loss or costs arises from or is attributable to, any negligent act or omission of the other party or its officers, employees, agents or contractors.

7        Termination

7.1        Mutual agreement

This agreement may be terminated at any time by written agreement of the parties.

7.2        Termination for breach

Either party may terminate this agreement by written notice to the other party if the other party breaches a term of this agreement and fails to remedy the breach within 30 days after receiving notice requiring it to do so.

7.3        Insolvency

XLAutomation may terminate this agreement by written notice to the Client if the Client has entered into any form of insolvency, liquidation or external administration, whether voluntary or involuntary, formal or otherwise.

7.4        Consequences

If this agreement is terminated for any reason, then:

  1. both parties will return all property in their possession belonging to the other party, including Confidential Information;
  2. the Client must pay XLAutomation all Fees owing to XLAutomation at termination or within 14 days of termination; and
  3. the Client will compensate XLAutomation for any irrevocable commitments entered by XLAutomation as part of the Services prior to XLAutomation receiving a termination notice from the Client to the extent that they were reasonable commitments made with the prior knowledge of the Client.
7.5        No prejudice

Termination of this agreement is without prejudice to the rights of the terminating party to obtain damages for any breach of this agreement.

7.6        Survival

Clauses 3 (Fees), 4 (Intellectual Property Rights), 5 (Confidentiality), 6 (Warranties and liability) and 7.4 (Consequences) survive the termination of this agreement for any reason.

8        Communication

8.1        Requirements for valid notice

Any notice or other formal communication under this agreement:

  1. must be in writing and signed by the authorised representative of the Client;
  2. must be marked to the attention of the recipients authorised representative and be delivered to the recipient by hand, pre-paid post or emailed PDF document at the address shown in the Client Details for the recipient.
  3. will be effective once received, and will be deemed to be received, if posted in Australia, on the seventh day or, if emailed, at the time shown on the read receipt report shown for successful delivery of the email.
8.2        Authorised persons

The parties agree that communications which do not comply with clause 8.1 (Requirements for valid notice) will be of no effect. Each party agrees that it will not rely on representations or promises made by any other persons associated with the other party, including XLAutomation personnel, other than those made by the other party’s authorised representative and agrees that representations and promises made by any other person do not bind the other party.

9        General

9.1        Terms and entire agreement

This agreement consists of these General Terms, the Client Details, the Forecast of Costs and Service Period and any annexures or schedules expressly incorporated and it constitutes the entire agreement of the parties about its subject matter and supersedes all previous agreements, understandings and negotiations on that subject matter.

9.2        Inconsistency

If there is an inconsistency between a provision of the Client Details, the Forecast of Costs and Service Period and any annexures or schedules expressly incorporated and these General Terms then the first-mentioned terms prevail.

9.3        No representations or warranties

The Client acknowledges that in entering into this agreement it has not relied on any representations or warranties about its subject matter except as expressly provided by this agreement.

9.4        Variation and waiver

A provision of this agreement or a right created under it may not be waived or varied except in writing, signed by the party or parties to be bound. A failure or delay in exercise of a right arising from a breach of this agreement does not constitute a waiver of that right.

9.5        Governing law

This agreement is governed by the law in force in Queensland, Australia. Each party submits to the non-exclusive jurisdiction of the courts of that place.

9.6        Further assurances

Each party agrees to execute such agreements, deeds and documents and do or cause to be executed or done all such acts and things as may be reasonably necessary to give effect to this agreement.

9.7        No exclusivity

The Client is not acquiring the Services on an exclusive basis and this agreement will not preclude each party engaging in activities similar to or in competition with the Services or their subject matter.

9.8        No agency or partnership

Nothing contained or implied in this agreement constitutes a party the partner, agent or legal representative of the other party for any purpose or creates any partnership, agency or trust, and a party has no authority to bind the other party in any way.

9.9        Force Majeure

Neither party is liable for any breach of its obligations under this agreement to the extent that the breach resulted from a Force Majeure Event provided that it:

  1. promptly notifies the other party (with appropriate details); and
  2. takes all reasonable steps to work around or reduce the effects of the Force Majeure Event.

If a Force Majeure Event continues for more than 30 days or continues beyond the Service Period, either party may terminate this agreement with immediate effect.

9.10      General Interpretation

Unless the contrary intention appears, in this agreement:

  1. references to the singular includes the plural and vice versa;
  2. references to person or individuals include a firm, body corporate, a partnership, a joint venture, an unincorporated body or association, or any government agency;
  3. the words “include” and “including” are not used as, nor are they to be interpreted as words of limitation;
  4. headings are for convenience only and do not affect interpretation;
  5. reference to a party means a party to this agreement and includes the party’s executors, administrators, successors and permitted assigns;
  6. reference to dollars is to Australian dollars unless otherwise stated;
  7. a provision of this agreement will not be construed to the disadvantage of a party merely because that party was responsible for the preparation of the agreement or the inclusion of the provision in the agreement;
  8. if an act must be done on a specified day which is not a business day, it must be done instead on the next business day; and
  9. where consent or approval is to be provided under the terms of this agreement, that consent or approval must not be withheld unreasonably.

 

 

10     Definitions

The following words have these meanings in this agreement

Client means the customer that has engaged XLAutomation to deliver the required Services

Client Materials means any and all documents, information, existing software and any other component that is provided by the Client to XLAutomation to assist in the delivery of the Services.

Confidential Information means all information or data that is exchanged between the parties for the purposes of this agreement of the Service before, on or after the effective date of this agreement relating to the operations, business, research and technology.

Deliverables means any software, documentation or other supporting components that are to be built, tested and implemented as part of this agreement.

Force Majeure Event means any event which is outside the reasonable control of the affected party and could not have been prevented by that party taking all reasonable steps.

PDF Document means a Portable Document Format document as created by Adobe© printing and scanning software.

Services means any activities listed as part of the Deliverables or project description that will be completed as part of this agreement

Service Period means the forecast period of time that this project will take to implement the Deliverables