Standard Terms and Conditions of bi5 Solutions Pty Ltd
1. IMPORTANT INFORMATION
Application of Terms and Conditions
Unless other stated the Terms and Condition apply to and form part of all engagements of bi5 Solutions Pty Ltd ABN 68602720623 (bi5) whether a printed version of the terms and conditions has been provided to you or you have viewed them on bi5’s website at www.bi5.com.au
Modification of Terms and Conditions
bi5 may modify the terms and conditions at any time on 30 days’ notice to you and any such modifications shall be effective at the expiry of the Notice Period. The most current version of the Term and Conditions can be viewed by clicking on the ‘Terms and Conditions’ hypertext link located at the bottom of the bi5 web site www.bi5.com.au
“Client” means any corporation, organisation or person to whom bi5 either sells a product or provides a service or both. “Engagement” means the agreement between bi5 and a client whether
written or otherwise whereby bi5 agrees to sell products or perform services or both for the client and includes these terms and conditions. “Fee” means the fee set out in the Schedule. “Party” means a party to this Engagement and “Parties” has a corresponding meaning. “Person” includes a natural person, body corporate or trust or any other entity capable of entering into an agreement. “Schedule” means the Schedule of this agreement. “Terms and Conditions” means these terms and conditions and any annexure attached hereto. “Training Date” means the date as agreed between the parties on which the Training is to occur. “We”, “Us” and “bi5” means bi5 or its employees, servants, agents or consultants. “You” means the client and includes any servant, agent, employee or consultant of the client as the case may be and “Your” has a corresponding meaning.
If bi5 agrees to provide training:
A. You provide:
For the purpose of any training you must provide:
1. Training resources and facilities suitable for the number of
attendees to be provided.
2. We suggest you provide attendees with meals and refreshments.
B. bi5 Provides:
1. For the purpose of any training bi5 will provide those items set out in item 2 of the Schedule and will retain all proprietary rights in these items.
2. Any loss or damage to those items as a result of or arising out of any action or conduct of the client must be paid for by the client.
C. Attendance at Training:
1. The client agrees that any employee, servant, agent or consultant of the client attending training will be punctual and diligently apply themselves to the training.
2. The non-attendance or partial attendance at the training will not remove, reduce or in any way affect the fee payable by the client.
4. EXCEL MODELS
If bi5 agrees to review your Excel modelling and Excel Models:
(a) bi5 will review and advise on the models and modelling as set out in the schedule.
(b) You will provide bi5 with access to the assumptions and other data used to construct the models and permit bi5 to conduct such testing of the models as Bi5 thinks fit.
(c) Unless bi5 specifically agrees in writing the review of any Excel model does not constitute a representation or warranty by bi5 that the Excel model is fit for any purpose.
(d) bi5 will retain such of the models and assumptions as provided for its files. The information and data as provided remains confidential unless bi5 is required to disclose at law or with your consent.
5. POSTPONEMENT AND CANCELLATION POLICY
Written notification is required of any postponement or cancellation or changes to the training date or period of consulting assignment.
If bi5 receives written notification of changes to the Training date or period of consulting period with less than 30 and more than 14 days’ notice from the original date 30% of the fees will also be charged.
If bi5 is notified of changes to the Training date with less than 14 days notice from the Training Date, 100% of the fees will also be charged.
Clients that provide bi5 with more than 30 days notice when cancelling Training will be provided with a discount voucher to the value of 20% of the fees. This voucher can be applied to any training course or open course within 6 months of the Training date.
6. FORCE MAJEURE
When either party is unable, wholly or in part , by reason of Force Majeure, to carry out any obligation pursuant to the engagement and that party:
(a) gives each other party prompt notice of that force majeure including reasonable particulars, and, in so far as known, the probable extent to which it will be unable to perform or be delayed in performing that obligation;
(b) uses all possible diligence to remove that force majeure as quickly as possible, that obligation is suspended so far as it is affected by force majeure during the continuance of that force majeure and that party shall be allowed a reasonable extension of time to perform its obligations.
If after a period of six months, the force majeure has not ceased, the Parties shall meet in good faith to discuss the situation and endeavour to achieve a mutually satisfactory resolution to the problem.
In this engagement, “force majeure” means an act of God, strike, lockout or other interference with work, war (declared or undeclared), blockade, disturbance, lightning, fire, earthquake, storm, flood, explosion, governmental or quasi-governmental restraint, expropriation, prohibition, intervention, direction or embargo, unavailability or delay in availability of equipment or transport, inability or delay in obtaining governmental or quasi-governmental approvals, consents, permits, licences, authorities or allocations and any other cause, whether in kind specifically enumerated above or otherwise which is not reasonable within the control of the party affected.
7. NON-EMPLOYMENT OF BI5 SOLUTIONS STAFF
During the period that bi5 provides services to you and for a period extending for six months after the engagement has been completed you shall not directly or indirectly through any associated company employ or enter into any agreement with for the provision of services either as a consultant or independent contractor, or offer any position or employment to any bi5 employee, whether permanent or contracted without the written permission of bi5.
You acknowledge that any breach of this provision will result in substantial damage to bi5 and you agree that in any event of breach of this provision you will pay to bi5 by way of liquidated damages, and not as a penalty, a sum equal to 50% of the gross annual salary for the bi5 employee at the rate current at the time of the breach, and for a subcontractor a sum equal to 26 times the weekly consulting fee charged to you.
8. SCOPE OF EXCLUSIONS
The items listed below are excluded from the scope of services provided by Bi5 pursuant to the engagement unless otherwise expressly agreed in the schedule:
(a) bi5 will make no attempt to ensure compliance with relevant Accounting standard, tax laws, or proper record-keeping
(b) bi5 will make no audit or other verification of any data or information
you provide to it.
(c) Although bi5 makes every effort to discover weaknesses and potential errors, due to the complex nature of Business data and reporting and analysis it cannot absolutely guarantee that its work if free from error.
bi5’s fees for services and products are exclusive of GST and are set out in the Schedule, or as otherwise agreed between the parties in writing.
Any disbursements will be charged at cost plus 10%. Any disbursements greater than $100 will be agreed with you prior to incurring them.
Invoices will be accompanied by a detailed timesheet where relevant and will be rendered fortnightly and will be payable within 14 days.
11. OVERDUE ACCOUNTS
Interest will be charged on all accounts not paid within 14 days of the invoice due date at the rate charged by bi5 bank on overdrafts of less than $100,000. Interest will be calculated on a daily basis from the date of the account to the date of payment unless bi5 agrees to waive the interest claim in writing.
Each time interest is raised an administration fee of $50 will be applied.
bi5 reserves the right to employ the services of a debt collection agency at its discretion for any account not paid within 45 days of the invoice due date.
The client will be liable for all costs incurred in collecting the outstanding amount.
12. LIMITATION OF LIABILITY
Any potential claim against bi5 or its staff is limited to the lesser of ten times the total fees rendered by bi5 for the assignment or $250,000.
The client shall indemnify bi5 against all liabilities, claims, costs or expenses (including legal fees and disbursements) incurred by bi5 in respect of any third party claim which is related to, arises out of, or is in any way associated with the products or services provided by Bi5, except to the extent that such claims, costs or expenses arise out of the negligent, wrongful or wilful act or omissions of bi5.
14. INTELLECTUAL PROPERTY
bi5 retains all rights over the use or reproduction of the intellectual property developed in this assignment until all the invoices are paid in full, or otherwise agreed in writing by bi5.
bi5 retains all rights over all code used in client project. This may include code bi5 developed prior to this engagement and any new code that is written during this engagement. bi5 may utilise any code component in other projects at its discretion.
Except for the ongoing, personal and non-transferrable right to use the deliverables resulting from this engagement, you shall not obtain or be granted any intellectual property rights to any deliverable or material supplied by bi5.
You shall not take any action by way of copying, disseminating, transmitting, accessing, or use any system that may infringe or may be inconsistent with the intellectual property rights of Bi5 or its licensors.
For the purpose of this clause, intellectual property means without limitation, copyright, patent rights, design rights or trade secrets in connection with the deliverable and their source code, or any source code, scrips or interfaces supplied by bi5 and any methodologies or process involved in the performance of this assignment or any deliverable or materials (including training materials) provided by bi5.
You are not permitted to sell or otherwise distribute the applications bi5 develops for you nor individual components without the authorisation from a Director of bi5.
The Client acknowledges that bi5 owns copyright in all document prepared by bi5 and that those documents must not be reproduced, published, copied, distributed or altered in any way without bi5’s written permission.
During the course of this engagement, You may provide bi5 with certain information of a confidential nature to enable it to complete the assignment.
1. bi5 acknowledges that all written and oral information furnished to it by You and you officers, employees, advisers or agents is valuable and confidential.
2. bi5 will not use the information except for the purpose of completing this Engagement or subsequent engagements You may request of it.
3. Subject to Clause 16 5, bi5 agrees that:-
(a) except as permitted under clause 16 2 or this clause, bi5 will not use or disclose any information without prior written consent from you;
(b) Bi5 will only disclose the information on a “need to know” basis to our directors, officers, employees and professional advisers and
(c) Bi5 will use its best endeavours to ensure that our directors, officers, employees and professional advisers to whom the information is disclosed comply with the obligations on it by this clause.
4. If this engagement does not proceed for any reason whatsoever, bi5 will, within 7 days of receipt of a demand from You, return to you or destroy any information supplied by You which is in a physical form and which is in the possession, custody or control of bi5.
5. Our obligations under this Engagement do not apply to any information
(a) bi5 is required by law or by the listing rules of the Australian Stock Exchange to disclose;
(b) is in or enters the public domain otherwise that by a breach of the agreement;
(c) is already known to bi5;
(d) is acquired by bi5 from a person who was not under an obligation of confidentiality relating hereto.
6. bi5 acknowledges that the value of the confidential information to you may be unique and therefore impractical to assess in monetary terms. accordingly, if an actual or threatened violation of this agreement occurs bi5 will consent to the enforcement of this Engagement by injunctive relief or specific performance without proof of actual damage.
7. These confidentiality provisions shall expire five years from the date of execution of this engagement.
17. CLIENT LIST
You agree that bi5 may add your organisation’s name to the bi5 list of clients for use by bi5 in sales material. bi5 agrees not to disclose information about your organisation should you organisation or cause it to be used as a reference site without your prior approval.
18. SERVICES OUTSIDE THE SCOPE OF THIS ENGAGEMENT
You may request that bi5 performs additional services at a future date not contemplated by the Engagement. If this occurs, You may request that Bi5 communicate with You regarding the scope and estimated cost of these additional services.
If You do not request an estimate, bi5 will provide its services to you on a time and materials basis, using the rates set out in the Schedule as amended by Bi5 from time to time.
Engagements for additional services may necessitate that bi5 issue a separate engagement letter to reflect the obligation of both parties.
19. TERMINATION BY bi5
bi5 may terminate this Engagement effective immediately and stop acting for the client if:
(a) The client does not comply with this agreement;
(b) bi5 forms an opinion that mutual confidence and trust do not exist between Bi5 and the Client;
(c) The Client requires bi5 to act in an unethical or unlawful manner;
(d) Any type of insolvency administrator is appointed in respect of the property or affairs of the Client
These rights are in addition to any other rights of termination in the agreement or at law.
All fees payable by the Client (whether these have been invoiced or not) will remain payable following termination.
20. VARIATION TO ENGAGEMENT
This Engagement may not be varied excepting writing and with the consent of both parties save as provided for in the Engagement. bi5 may send the Client written notice of a variation of this Engagement including any proposed increase in hourly rates and the Clients continued instruction of bi5 after the date of receipt of that notice shall constitute the clients acceptance of that variation.
21. CONTINUING ENGAGEMENTS:
In the absence of a further set of terms and conditions, these terms and conditions will apply to any future engagement by the Client of bi5.
bi5 retains ownership of its own files and the contents thereof and it entitled to retain all documents and property in its possession provided by the Client until the matter is completed and all invoices for Fees are paid in full.
The Engagement shall be governed by and construed in accordance with Western Australian law and any dispute, controversy or claim arising out of or in connection with this Engagement or the breach, termination or invalidity of the Engagement shall be referred to the non-exclusive jurisdiction of the Supreme Courts of Western Australia.
24. REASONABLE CARE:
bi5 will take reasonable care in providing the products and services to the Client. If the Client makes a claim against bi5 for breach of contract and the loss, injury or damage the Client suffers as a result of bi5s negligence and the Clients negligence the Clients claim will be reduced as if the claim was based on negligence to the extent of the Client’s contributory negligence.
The Client shall not in any way assign or deal with interests under the Engagement without bi5’s prior written consent. Where the Client is a corporation it is deemed to have assigned the Engagement if these is a change in control of the shareholding of the client.
bi5 shall not be deemed to have waived any of its rights under the Engagement unless such waiver is in writing.
If a clause or part of a clause can be read in a way that makes it illegal, unenforceable or invalid, but can also be read in a way that makes it legal enforceable and valid; it must be read in the latter way. If any clause or part of a clause relating to service of documents, security or indemnity is illegal, unenforceable or invalid, that clause or part is to be treated as removed from the Engagement, but the rest of this Engagement is not affected.
All notices which are required to be given under this Engagement shall be in writing and shall be sent to the address of the recipient set out in the schedule or such address as the recipient may designate by notice given in accordance with this clause. Any notice may be delivered by hand or by pre-paid letter or facsimile. Any such notice shall be deemed to have been served when delivered (if delivered by hand) or 48 hours after posting (except by pre-paid letter) or on transmission by the sender (if sent by facsimile).
The Client agrees that in providing products and performing services in accordance with the Engagement or unless it has the authority from You to do so, bi5 may collect personal information (including sensitive and health information) about the Client and other persons. bi5 will only use this information for the purpose of providing the products and services to the Client unless is legally required.
If the Client provides bi5 with personal information collected from other individuals, the Client warrants to bi5 that the information is correct, has been collected in accordance with the applicable privacy legislation and that bi5 is authorised to receive that information from the Client and to use it for the purposes of providing the products and services to the Client.
In the course of acting for the Client, bi5 may disclose to the Client personal information about other individuals in which case the Client agrees that it will use, disclose, handle, store and transfer that information only in accordance with the Privacy Act 1988 (Commonwealth). The Client also agrees that it will
comply with the Bi5 requirements in relation to the protection of personal
Services will be delivered by a suitably qualified bi5 representative in accordance with the delivery schedule set out in the Engagement letter. Products ordered from bi5 will be delivered to the Client via Courier, Australia Port, in person by a bi5 representative at bi5’s discretion. Clients should note that some Products are supplied directly by the producer of those products. In this case the producer’s delivery policy will apply. This will be noted in the Engagement letter.
We are unable to accept the return of any Product. Clients are advised to fully test Products using the evaluation software version available prior to purchase.
We will replace any defective media when this is returned to us. Services are not refundable.
Any dispute, controversy or claim arising out of, relating to or in connection with this contract including any question regarding its existence, validity or termination, shall be resolved by arbitration in accordance with the ACICA Arbitration Rules. The seat of arbitration shall be Perth, Western Australia. The language of the Arbitration shall be English. The number of arbitrators shall be one.