- 1.1 Together with the Proposal, these Terms and Conditions form part of the Agreement between CQR and the Client for the provision of the Services.
These Terms and Conditions will apply to any further Services provided by CQR to the Client unless otherwise agreed in writing.
- 1.2 The terms of any Proposal will prevail to the extent of any inconsistency with these Terms and Conditions.
- 1.3 Defined terms and rules for interpretation are set out in clause 20.
CQR will provide the Services to the Client in accordance with the Agreement from the Commencement Date until the earlier of the End Date or the
termination of the Agreement.
3. Warranties by CQR
- 3.1 CQR warrants that:
- 3.1.1 it will perform the Services in a competent and prudent manner; and
- 3.1.2 the Services will be performed in accordance with all applicable laws, rules, regulations, standards and industry customs.
- 3.2 Other than as expressly provided in the Proposal or these Terms and Conditions, to the maximum extent permitted by law, all other warranties
4. Obligations of Client
The Client will provide CQR with access to its computer systems, premises, data and any other information in the manner reasonably required by
CQR to perform the Services in accordance with the Agreement.
- 5.1 The Client authorises CQR Representatives to access and use the Client’s computer systems as reasonably required by CQR for the provision
of the Services for all purposes, including in connection with the Criminal Code Act 1995 (Cth).
- 5.2 The Client will provide CQR with a signed authority in the form set out in the Proposal from such persons as CQR reasonably requires, prior
to the provision of any Services by CQR.
- 5.3 To the maximum extent permitted by law, the Client will indemnify CQR from and against any Claim pursuant to the Criminal Code Act 1995
(Cth) relating to, arising out of or in connection with the Agreement.
- 6.1 In performing the Services, CQR acknowledges that the systems being tested may be live operating systems. CQR will use all due care to
minimise the impact of any tests which form part of the Services.
- 6.2 The Client acknowledges that:
- 6.2.1 CQR may immediately halt any testing which forms part of the Services if directed by the Client or if CQR suspects that the Client’s
information or operating systems are being unduly impacted; and
- 6.2.2 provided CQR has complied with clause 6.1, CQR will not be on breach of the Agreement if the Services impact the information
or operating systems of the Client, or performance of the Services is halted in accordance with clause 6.2.1.
7. Service Fees and Expenses
- 7.1 The Client will pay CQR the Service Fees in consideration of CQR providing the Services to the Client, in accordance with this clause 7.
- 7.2 The Client will pay any expenses to be incurred by CQR in performance of the Services as set out in the Proposal (“Expenses”).
- 7.3 The Client will pay the Service Fees and Expenses (if any) in the manner set out in the Proposal. If no payment terms are specified in
the Proposal, the Client will pay the Service Fees and Expenses (or such portion as determined by CQR) within 10 Business Days of the end
of each month in which the Services are provided.
- 7.4 The Client will not be required to pay the Service Fees or Expenses (if any) unless CQR has provided a valid tax invoice to the Client
for the Services performed.
- 7.5 The Client must pay all amounts payable or owing by it to CQR under the Agreement without any set off or deduction.
- 7.6 Any variation to the Services or the manner in which the Services are to be performed and provided by CQR to the Client may result in additional
Service Fees (other than as a result of breach of this Agreement by CQR). This includes variations resulting from alterations to the timeframes
due to Client unavailability, changes to any scope of work forming part of the Services or a Proposal, CQR being required to repeat or
perform the same Services, modifications to the Client’s hardware, software or other technical infrastructure and any additional information
uncovered in performing the Services or provided by the Client.
- 8.1 Subject to the Proposal, if any supply under the Agreement is or becomes subject to GST, the party to whom the supply is made (“the Recipient”)
must pay to the party making the supply (“the Supplier”), as consideration in addition to any consideration payable or to be provided elsewhere
in the Agreement, such amount to be calculated by multiplying the consideration by the applicable rate of GST.
- 8.2 Any amount in respect of GST payable under clause 8.1 must be paid to the Supplier no later than the day on which payment is due and payable
for the Services.
9. Non-Performance of Services
- 9.1 Subject to clause 9.2, if CQR does not provide the Services in accordance with the Agreement the Client may require CQR, at CQR’s expense,
to promptly perform or re-perform the Services in accordance with the Agreement.
- 9.2 CQR will not be required to remedy any default or otherwise perform or re-perform any Services pursuant to clause 9.1, where the non-performance
is caused or contributed to by the Client (including the Client’s employees, agents or contractors) or any failure of the Client’s systems
or IT infrastructure during the provision of the Services.
10. Force Majeure
- 10.1 CQR will not be liable for performance of any of its obligations under the Agreement as a result of an act of God, national emergency,
war, prohibitive governmental regulations, labour dispute or any other cause beyond CQR’s reasonable control. If such a force majeure event
occurs, CQR will notify the Client of the occurrence and expected duration of that event.
- 10.2 If a force majeure event renders performance of the Agreement impossible for a continuous period of at least fourteen (14) Business Days,
either party may by notice to the other, terminate the Agreement.
11. Warranties by Client
The Client warrants that it is (i) validly in existence under all applicable laws, (ii) duly authorised to enter into the Agreement, (iii) has
obtained all required consents and approvals to do so and (iv) is not contravening any law, judgment, order or rule of any Government Agency
or any agreement by entering into the Agreement.
12. Liability of CQR
- 12.1 To the maximum extent permitted by law CQR will only be liable for any Claim associated with the non-performance of the Services in any
manner as set out in clause 9.1.
- 12.2 Notwithstanding any other clause of the Agreement, CQR will not be liable for:
- 12.2.1 any direct or any special, indirect or consequential damages, including without limitation, loss of business, loss of data or
loss of profits, loss of production, loss of use of any plant or facility, business interruption, loss of business opportunity
or any other special contingent or penal damage or loss, whether in contract, tort or otherwise resulting from any performance
or non-performance of the Services for any reason; or
- 12.2.2 any Claim relating to, arising out of or in connection with anything which is done (or is not done) by the Client without CQR’s
prior written approval.
- 12.3 Provided that CQR performs the Services in accordance with this Agreement (but subject always to this clause 12), CQR will have no liability
for and the Client will indemnify CQR from and against all Claims arising out of, relating to, or in connection with the performance of
its obligations under the Agreement, including:
- 12.3.1 physical loss of or damage to property of the Client or any other person (other than of CQR) and personal injury, disease, illness
or death of any of the Client’s personnel;
- 12.3.2 any negligent or wrongful act or omission of the Client in connection with or incidental to the Agreement;
- 12.3.3 any licence, sub-licence or any other agreement between the Client and its customers or any agent or representative of the Client;
- 12.3.4 any breach or alleged breach of a third party’s Intellectual Property rights; or
- 12.3.5 any breach of the Agreement by the Client.
- 13.1 If either party breaches a term of the Agreement (“Defaulting Party”) and the breach can be remedied, the other party (“Non-Defaulting
Party”) may give the Defaulting Party not less than seven (7) days notice to remedy that breach. If the breach is not remedied within the
period stipulated in the notice, the Non-Defaulting Party may give the Defaulting Party a further notice immediately terminating the Agreement.
- 13.2 Either party may terminate the Agreement by notice to the other party immediately upon any of the following events:
- 13.2.1 if the other party commits a material breach of this Agreement which cannot be remedied;
- 13.2.2 if the other party ceases to carry on business as a going concern;
- 13.2.3 if an Insolvency Event occurs in relation to the other party; or
- 13.2.4 if the other party commits a serious criminal offence.
- 13.3 Termination of the Agreement will not effect any rights or obligations of party which arose prior to the date of termination. CQR will
not be liable to the Client for any Claims by the Client relating to the termination of this Agreement by CQR in accordance with this clause
- 14.1 Each party owns all of its Confidential Information. During the Agreement and after its termination, each party can use or disclose the
other party’s Confidential Information only to (i) perform the Services, (ii) professional advisors on a confidential basis for the purpose
of obtaining advice, (iii) if the disclosing party has consented in writing, or (iv) if required by law.
- 14.2 Upon termination of the Agreement, the recipient of Confidential Information must at the disclosing party’s discretion, deliver to the
disclosing party or destroy all Confidential Information in the recipient’s possession or under its control; and delete all Confidential
Information held electronically in any medium in the recipient’s possession or under its control. The recipient may retain one copy of
any Confidential Information as required by law, any report provided by CQR to the Client and any information contained in working papers
or files prepared by CQR in connection with that report.
15. Intellectual Property
- 15.1 In relation to any report provided by CQR to the Client pursuant to the Agreement, CQR grants the Client an irrevocable and non-exclusive
licence to use that report subject to the terms of the Agreement, provided that CQR retains copyright in that report.
- 15.2 Subject to clause 15.1, all Intellectual Property and similar rights in any other document, work or other matter developed, created, owned
or contributed to by CQR belongs to CQR and CQR owns all rights, title and interest in that Intellectual Property.
- 15.3 During the Term and after the End Date the Client will not use any of CQR’s Intellectual Property except as expressly permitted by the
Agreement nor register or use any name or mark similar to or capable of being confused with CQR’s name, business name or trade mark.
- 15.4 Subject to this clause 15, any Intellectual Property of the Client as at the date of the Agreement will remain the property of the Client.
16. CQR Staff
- 16.1 While CQR is providing any Services to the Client and for a period of 6 months after the End Date, the Client will not make an offer of
employment to any employee or contractor of CQR. In addition, during that period the Client will also not solicit, induce or entice any
employee or contractor of CQR to cease to work for CQR, nor will the Client attempt to do so.
- 16.2 Clause 16.1 does not prohibit the Client from publishing a bona fide employment opportunity with the Client to the general public or making
an offer of employment to a person who has responded to such an advertisement or publication.
17. Dispute Resolution
- 17.1 Any dispute or disagreement in relation to or in connection with the Agreement in any matter (“Dispute”) is to be resolved in accordance
with the procedure provided in this clause 17. In the event of a Dispute, the party seeking to have it resolved must issue to the other
parties a notice setting out all details relevant to the Dispute (“a Dispute Notice”).
- 17.2 Within 14 days of receipt of a Dispute Notice, the senior management of the parties to the Dispute respectively must meet in Adelaide
to negotiate resolution of the Dispute. The parties agree that those negotiations must be conducted in good faith.
- 17.3 In the event that the Dispute is not resolved in accordance with clause 17.2, within 14 days of receipt of a Dispute Notice, the Parties
must jointly request the appointment of a mediator. If the parties fail to agree on the appointment of a mediator within 7 days of a notice
of appointment of mediator, either Party may apply to the President of the Law Society of South Australia or the nominee of the President
to appoint a mediator. Once the mediator has accepted the appointment, the Parties must comply with the instructions of the mediator. If
the Dispute is not resolved by mediation, either party will be entitled to take legal action.
- 17.4 Nothing contained in this clause 17 will prevent a party from seeking urgent interlocutory relief.
- 18.1 Unless otherwise specified, the Agreement contains the entire agreement between the parties in respect of the subject matter of the Agreement
and supersedes any prior agreement or understanding (if any) between the parties in relation to the subject matter of the Agreement.
- 18.2 Any amendment to a term of the Agreement must be made in writing executed by the parties.
- 18.3 CQR may assign its interest under the Agreement at any time. The Client can only assign its interest under this Agreement with the prior
written consent of CQR.
- 18.4 A provision of this Agreement must be read down to the extent necessary to be valid. If it cannot be read down to that extent, it must
be severed. The Agreement with the offending provision severed and omitted and with any consequential amendment if necessary, will otherwise
remain in full force.
- 18.5 The Agreement will be construed according to the laws of South Australia and the parties submit themselves to the non-exclusive jurisdiction
of the Courts of South Australia and any competent appellate courts.
- 18.6 The Agreement may be executed in any number of counterparts and all counterparts taken together will constitute one and the same instrument.
Satisfactory evidence of execution of this Agreement will include evidence of execution sent by facsimile or electronic transmission by
the relevant party and in such case, the executing party undertakes to produce the original as soon as reasonably practicable thereafter.
- 18.7 The Agreement will only come into effect and be binding on the parties when it is duly executed by all of the parties.
- 18.8 The parties will pay their own costs in respect of the negotiation, preparation and execution of the Agreement.
- 18.9 The parties are independent entities. The parties are not principal and agent, partners, trustee and beneficiary or employer and employee.
- 19.1 Any notice to be given by one party to the other must be (i) signed by the party giving the notice or by one of its officers or its duly
authorised lawyer or agent and (ii) hand delivered or sent by prepaid post, facsimile or electronic mail to the address, facsimile number
or electronic mail address (as the case may be) set out in the Agreement (or any other address, facsimile number or electronic mail address
that a party notifies to the other party from time to time).
- 19.2 Notice will be deemed sufficiently given in the case of (i) hand delivery, on the date of delivery (ii) pre-paid post two Business Days
after being sent (iii) facsimile, on receipt by the sender of a successful transmission answerback, or (iv) electronic mail, on the day
of transmission provided that the sender can give evidence of transmission and the intended recipient does not give evidence of non-receipt.
20. Interpretations and definitions
In the Agreement unless qualified by or inconsistent with the context:
- 20.1 A reference to one gender includes the other genders; a reference to a person includes a body corporate or un-incorporate and vice versa;
the singular includes the plural and vice versa.
- 20.2 A reference to a clause is a reference to a clause of this Agreement. A reference to a Schedule is a reference to a schedule to this Agreement.
- 20.3 Where a word or phrase is given a particular meaning, other parts of speech or grammatical forms of that word or phrase have corresponding
- 20.4 Headings are for convenience of reference and will not affect the interpretation.
- 20.5 Any schedules form part of the Agreement.
- 20.6 The Agreement is written in plain English as far as possible. Its terms are to be interpreted so as to give efficacy to the parties’ agreement.
No rule resolving a doubt as to interpretation against the party preparing the Agreement will apply. The specific provisions will not limit
the interpretation of general provisions.
- 20.7 The Agreement binds the parties’ respective heirs, executors, administrators, legal personal representatives, successors and permitted
- 20.8 “Agreement” means the agreement set out in the Proposal and these Terms and Conditions.
- 20.9 “Business Day” is a day other than a Saturday, Sunday or public holiday in South Australia.
- 20.10 “Claim” means, in relation to any person, any damage, loss, cost, expense or liability incurred by the person or a claim, demand, action,
proceeding or judgment made against the person, however arising and whether present or future, fixed or unascertained, actual or contingent.
- 20.11 “Client” means the person identified as the Client in the Proposal.
- 20.12 “Commencement Date” means the date specified in the Proposal for commencement of performance of the Services by CQR. If no such date
is specified, the Commencement Date is the date the Proposal is signed by CQR and the Client.
- 20.13 “Confidential Information” means any information obtained by one party concerning the other party or its business activities and that
(i) by its nature is confidential, (ii) is designated by the disclosing party as confidential or (iii) the recipient knows or ought to
know is confidential; but excludes information that is publicly available, except as a result of a breach of this Agreement or was disclosed
to the recipient by a third party who was not under a duty of confidentiality in relation to that disclosure.
- 20.14 “CQR” means CQR Consulting Australia Pty Ltd ABN 16 141 058 022.
- 20.15 “CQR Representatives” means representatives of CQR authorised by CQR in writing for the purpose of the Agreement.
- 20.16 “End Date” means the date by which the Services must be completed as specified in the Proposal. If no such date is specified, the End
Date is the date upon which the Services are completed by CQR.
- 20.17 “Government Agency” means a government or a governmental, semi-governmental or judicial entity or similar authority, and includes a self
regulatory organisation established under statute or a stock exchange.
- 20.18 “GST” means any goods and services tax or similar tax, levy, charge or impost, and includes any interest, fine, penalty, charge, fee
or any other amount imposed on or in respect of any of the above.
- 20.19 “Insolvency Event” means any of the following:
- 20.19.1 the threatened or actual appointment of a voluntary administrator, liquidator, provisional liquidator, receiver, receiver and
manager, controller, trustee in bankruptcy, administrator or other person of similar office, including any application to a court
for such an appointment;
- 20.19.2 entry into or proposing an arrangement or compromise for the benefit of creditors;
- 20.19.3 the levy or enforcement of a writ of execution, order or judgment;
- 20.19.4 becoming unable to pay debts as and when they fall due for payment;
- 20.19.5 the taking of possession or control of any asset by a person under an Encumbrance; or
- 20.19.6 failing to satisfy or to apply to have set aside a statutory demand, a bankruptcy notice or other similar form of statutory
notice within the time specified in the demand or notice.
- 20.20 “Intellectual Property” means all intellectual property rights including, without limitation:
- 20.20.1 patents, copyright, registered designs, rights in circuit layouts, trade marks, inventions, secret processes, computer code,
discoveries and improvements and modifications of any kind;
- 20.20.2 the right to have confidential information kept confidential; and
- 20.20.3 any application or right to apply for registration of any of the rights defined in this clause 20.20.
- 20.21 “notice” means written notice and “notify” means notification in writing.
- 20.22 “Proposal” means a written proposal, offer or quote provided by CQR to the Client in relation to the Services.
- 20.23 “Services” means any services to be provided by CQR to the Client as set out in a Proposal, and any other services agreed by CQR and
the Client in writing for the purpose of the Agreement.
- 20.24 “Service Fees” means the fees payable to CQR by the Client in consideration of CQR providing the Services as set out in the Proposal
or otherwise agreed in writing between CQR and the Client.
- 20.25 “Term” means the term of the Agreement set out in clause 2.