In these terms and conditions, we are Tenrod Australia Pty Ltd or
any of its associated companies and you are the Customer.
These terms and conditions apply to all supplies of
Services by us to you, unless otherwise agreed in writing signed by you and us.
1
Definitions
Completion Date means the date on which the Services are
delivered in accordance with clause 6.2.
Confidential Information means any information, but is not limited to, trade secrets
and marketing information, proprietary software, computer documents, processes
or applications and all other documents that are marked, or which the recipient
is told is, confidential.
In the context of these terms and conditions,
confidential information does not include information that:
(a)
is in
the public domain (other than as a result of an unauthorised disclosure);
(b)
which
the recipient already possesses at the time of disclosure (unless received as a
result of an unauthorised disclosure); or
(c)
is
required to be disclosed by law.
Deliverable means the tangible output of the Services
(including, but not limited to, engineering and working instructions,
specifications, drawings, designs, writings, layouts, prototypes and Software).
Deposit means the amount of the prepayment required by Tenrod that is specified
in a Work Order.
Fees means the amount we will charge you for the supply of the Services as confirmed
in a Work Order.
Intellectual Property means all
present and future intellectual and industrial property rights conferred by
statute, at common law or in equity wherever those rights might arise,
including (without limitation):
(d)
copyright,
patent rights, designs, rights in circuit layouts, plant breeder’s rights,
trade marks, rights in relation to inventions, and all other results of
intellectual effort in the scientific, industrial, literary or artistic fields,
whether or not registered or capable of registration;
(e)
any
application or right to apply for registration of any of those rights;
(f)
any
registration of any of those rights or any registration of any application
referred to in item (b); and
(g)
all
renewals and extensions of those rights.
Work Order means
a written order for Services submitted by us to you incorporating the terms of
the Quote as agreed between the parties and in accordance with clauses 3.2 and 4.1(d).
Personnel of a party means its employees, agents and
contractors.
Quote means the preliminary document we provide to
you for each Work Order describing the Services (and Deliverable(s)) we will
supply, the Fees, payment terms and a timetable setting out the proposed stages
in which the Services and/or Deliverable(s) will be supplied.
Services has the meaning given to it in clause 3.1 and are described in a Work Order.
Software means any executable machine readable
program and does not include the source code for that program.
Stage means the stage(s) in which the Services
will be supplied as set out in a Work Order.
Timetable means the final timetable setting out the
stages in which the Services and/or Deliverables will be completed and supplied
as agreed between the parties and set out in a Work Order .
Updated Work Order has the meaning given to it in clause 5.2.
2
Interpretation
2.1
In
these terms and conditions, unless the contrary intention appears otherwise:
(a)
words
in the singular includes the plural and vice versa and words importing a gender
include other genders;
(b)
a
reference to a person includes a partnership and a body, whether corporate or
otherwise; and
(c)
a
reference to a document includes any amendment or supplement to, or replacement
or novation of, that document.
3
Services
(a)
software development services;
(b)
turnkey engineering services and manufacturing
services; and
(c)
design work for new products (including
development of prototypes).
3.3
If
you require us to source a manufacturer arising out of the Services we supply, we
will do so under a separate agreement between us.
(c)
you approve our Quote;
(e)
you accept the Work Order by signing it and
returning it to us and paying the Deposit in full.
5
Modifications
5.3
If
you do not provide us with written acceptance of our Updated Work Order, we
will not undertake the requested modifications to the Services in the relevant Work
Order.
6
Delivery of Services
(a)
you do not notify us in accordance with clauses 7.1 and 7.3; or
(b)
if you put the Software to use.
8
Fees
8.1
The
Fees set out in each Quote will be confirmed in the Work Order we provide for
that Quote.
8.2
The
Fees do not include any sales tax, goods and services tax, stamp duty and all
other excises and duties that may be imposed in relation to these terms and
conditions or the supply of the Services by us. Each of them is payable by you
and, if paid by us, must be reimbursed on demand.
9
Invoicing and
Payment
9.1
We
will give you a tax invoice at the end of each Stage.
10.3
We
also reserve the right to charge interest on any outstanding invoice at an
annual rate equal to 2% above the cash rate target notified by the Reserve Bank
of Australia from time to time.
11.1
If
you dispute the whole or any part of an amount invoiced by us, you must pay the
portion of the invoiced amount not in dispute and must notify us in writing of
the reasons for disputing the remainder of the invoice.
11.2
If
it is resolved that some or all of the disputed amount ought properly to have
been paid at the time it was invoiced, then you must pay the unpaid amount to
us immediately.
12
Implied Warranties
12.1
Terms,
conditions and warranties implied by law which cannot be excluded, restricted
and modified apply to our supply of the Services to the extent required by that
law.
12.2
We
exclude to the extent permitted by law all other terms, conditions and
warranties which might be implied into an agreement with you.
12.3
You
do not rely on any representation, warranty or other provision made by or for
us which is not expressly stated in our agreement with you.
13
Intellectual
Property
13.4
We
will execute all documents and do all other things required by you for the
purpose of giving effect to clauses 13.1 and 13.3.
14.1
If
any part or all of the Deliverables we supply to you are claimed to infringe on
the Intellectual Property rights of a third party, or where a risk of such
infringement arises, you accept that we, at our discretion may either:
(a)
obtain the right from the legitimate holder of
the Intellectual Property rights for you to continue use; or
(b)
modify or resupply the Services so as to bring
an end to the infringement.
Should none of these options be available on
terms considered fair to us, we will stop, on our request, using the
Deliverables we supplied to you.
15
Confidential Information
15.1
Each
party (Recipient) must keep
confidential, and not use or disclose to a third party, any confidential
information disclosed by another party (Disclosing Party) without the prior written consent of the Disclosing Party, except as
is permitted under these terms and conditions or as is required by Law.
16
Insurance
16.1
We
agree to maintain insurance cover for public liability and professional
indemnity insurance when supplying the Services for you. Details of these policies are available on
request.
17.1
Subject
to our liability under clause 17.3, you release us from any liability to you for any
loss or damage suffered by you arising from or related to our supply of the
Services to you.
17.2
In
this clause 17:
(a)
loss or damage includes loss or
damage caused by the loss of or damage to property, personal injury or death,
damage to reputation or goodwill, as well as loss of profits, increased
operating or maintenance expenses or any indirect or consequential loss.
(b)
supply of the Services means the
supply or non supply of the Services including but not limited to an act or omission
that constitutes or results in negligence, or other tort, or in a breach or
alleged breach of contract or statutory duty.
(a)
the supplying of the Services again; or
(b)
the payment of the cost of having the Services
supplied again.
18
Termination
18.1
Either
party may terminate an agreement containing these terms and conditions
immediately:
(a)
if the
other party becomes, or threatens to become, or is in jeopardy of becoming,
subject to any form of insolvency administration; or
18.2
Upon
termination of an agreement containing these terms and conditions by you, we
will immediately stop supplying the Services.
18.3
If
you terminate under clause 18.1(b), you will pay us reasonable compensation for all work
done in accordance with the Quote up to the date of termination and for so long
as the amount does not exceed the total Fees payable.
18.4
If
an agreement containing these terms and conditions is terminated by either
party, the Deposit will not be refunded by us to you.
18.5
Termination
does not affect any accrued rights or liabilities of either party nor does it
affect any provision which is expressly or by implication intended to operate
after termination.
19
General
19.1
If
any provision or paragraph of these terms and conditions is determined to be
illegal or unenforceable, it will not affect the enforceability of any other
provision or paragraph of these terms and conditions.
19.2
Any
variation to or waiver of a provision of these terms and conditions is
effective only if in writing and signed by us.
19.3
A
failure, delay, relaxation or indulgence on our part in exercising any right
conferred by us by these terms and conditions does not operate as a waiver of
that right.
19.5
Any
notice given in respect of these terms and conditions must be in writing and
given personally or delivered to the recipient’s address last known to the
person giving the notice. In the case of service by post, the notice will be
deemed to have been served two days following the posting.
19.6
The
construction, validity and performance of any agreement incorporating these
terms and conditions will be governed by the laws of the State of New South
Wales and you will submit to the
non-exclusive jurisdiction of the New South Wales Courts.