Standard Terms and Conditions
DRGT Consulting Standard Terms and Conditions (these Terms) sets out the terms and conditions on which the parties agree to the supply, by xGRC Corporation Pty Ltd t/as DRGT Consulting (“DRGT Consulting“), of certain Goods and Services to the Customer, for a Price.
1. The Contract
1.1. Each time the Customer wishes to engage DRGT Consulting to supply certain Goods and Services to it, the parties will agree upon the specific commercial terms (for example, exact description of goods, quantity, scope of services and price etc) of such supply in the form of a written document, referred to in these Terms as a Commercial Engagement Document. The type and nature of such Goods and Services will determine whether a Commercial Engagement Document takes the form of a Customer purchase order, DRGT Consulting quotation, DRGT Consulting proposal, statement of work, Customer specification or a combination of these documents as agreed by the parties on a case by case basis.
1.2. Upon the parties agreement to a Commercial Engagement Document, a separate and distinct contract incorporating that document(s) and these Terms is formed between the Customer and DRGT Consulting for the supply of the relevant Goods and Services (an “Individual Contract”).
Individual Contract = these Terms + Commercial Engagement Document
1.3. Notwithstanding the above provisions, unless expressly agreed by the parties in writing, the supply of all Goods and Services to the Customer by or on behalf of DRGT Consulting will be governed by these Terms. These Terms may be incorporated into several Individual Contracts concurrently.
1.4. Save in respect of clause 1.5, to the extent of any inconsistency between the terms of these Terms and a Commercial Engagement Document, as both combine to form an Individual Contract, the terms of an Individual Contract will prevail over and supersede the conflicting provisions in these Terms.
1.5. No purchase order, confirmation, receipt, shipment or delivery docket, quote, invoice or other document issued by or on behalf of the Customer (including the terms on any pre-printed purchase order form, or the Customer’s standard retainer document) will vary or form part of these Terms or an Individual Contract.
1.6. Terms contained in the General Terms section of these Terms pertain to the supply of all Goods and Services by DRGT Consulting to the Customer pursuant to these Terms.
2. Interpretation
In these Terms, except where the context otherwise requires:
2.1. a reference to a clause, paragraph, schedule or annexure is to a clause or paragraph of, or schedule or annex to, these Terms, and a reference to these Terms includes any schedule or annexure;
2.2. a reference to a document or instrument includes the document or instrument as novated, altered, supplemented or replaced from time to time;
2.3. a reference to A$, $A, AUD, dollar or $ is to Australian currency;
2.4. a reference to time is to Australian Eastern Standard time unless expressly set out to the contrary in an Individual Contract;
2.5. a reference to a statute, ordinance, code or other law includes regulations and other instruments under it and consolidations, amendments, re-enactments or replacements of any of them;
2.6. the meaning of general words is not limited by specific examples introduced by ‘including’, ‘for example’ or similar expressions;
2.7. a rule of construction does not apply to the disadvantage of a party because the party was responsible for the preparation of these Terms or any part of it;
2.8. if a day on or by which an obligation must be performed or an event must occur is not a Business Day, the obligation must be performed or the event must occur on or by the next Business Day;
2.9. words beginning with a capital letter may be a defined term;
2.10. definitions appear in clause 3;
2.11. reference to:
(1) one gender includes each other gender;
(2) the singular includes the plural and the plural includes the singular;
(3) a person includes a body corporate; and
(4) a party includes the party’s executors, administrators, successors and permitted assigns;
2.12. if a party consists of more than one person, these Terms binds them jointly and each of them severally;
2.13. headings are for convenience only and do not form part of these Terms or affect its interpretation;
2.14. a party that is a trustee is bound both personally and in its capacity as a trustee; and
2.15. where a word or expression is given a particular meaning, other parts of speech and grammatical forms of that word or expression have a corresponding meaning.
3. Definitions
3.1. “Acceptance Tests” or “Acceptance Testing” means the test methodology or criteria for determining acceptance by the Customer of the Goods and Services as described in the Commercial Engagement Document, subject to any change thereto effected by Change Order.
3.2. “Assumptions” means the assumptions, constraints and other service conditions made by DRGT Consulting and the circumstances contemplated by the parties in respect of each Individual Contract and as set out in each Commercial Engagement Document.
3.3. “Business Day” means a day that is not a Saturday, Sunday or any other day that is a gazetted public holiday or a bank holiday in the place where an act is to be performed or a payment is to be made, as the context admits.
3.4. “Business Hours” means 8:30 am to 5:00 pm of each Business Day.
3.5. “Change Order” means a document signed by both parties recording any mutually agreeable changes to an Individual Contract from time to time.
3.6. “Change Order Request” is a document prepared by the Customer and submitted to DRGT Consulting from which DRGT Consulting shall review in good faith and respond to the Customer in writing by presenting a draft Change Order.
3.7. “Confidential Information” means (i) any trade secrets embodied in any information relating to, but not limited to, the commercial activities, product pricing, technologies, business processes, client relationships, strategic information, Candidate personal information, Price, and any other information related to the conduct of each parties businesses; (ii) any information designated in writing by either party, by appropriate legend, as confidential; (iii) any information which if first disclosed orally is identified as confidential at the time of disclosure; and (iv) the terms and conditions of these Terms and each Individual Contract.
3.8. “Commercial Engagement Document” means a written document agreed to by the parties that sets out the specific details pertaining to the supply of certain Goods and Services, including quantities, price, product descriptions, scope statement, acceptance testing requirements and other associated matters. A Commercial Engagement Document may take the form of an accepted DRGT Consulting quotation or sales proposal, Customer purchase order expressly accepted by DRGT Consulting, DRGT Consulting tender response accepted by Customer or an agreed statement of work or scope of services setting out the nature, scope and parameters of work to be performed.
3.9. “Customer” means (i) with respect to each Individual Contract formed pursuant to these Terms, the specific Customer Group Company that enters into such Individual Contract; and (ii) where used in these Terms, means the person, business or company that in the particular circumstance is the customer in respect of whom the Goods and Services are provided.
3.10. “Customer Group Company” means each Customer and each Related Body Corporate of the Customer, as the context admits.
3.11. “Developed Software” means Software created by or on behalf of DRGT Consulting for the Customer pursuant to these Terms, as further particularised in the Commercial Engagement Document.
3.12. “EULA” or “End User Licence Agreement” means the licence agreement governing the use of certain Software as negotiated and agreed directly between the Customer and the owner of that Software.
3.13. “Existing Intellectual Property” means any Intellectual Property Rights owned by or licensed to DRGT Consulting which exists prior to the date of these Terms or is developed or acquired by DRGT Consulting independently of these Terms which is used by DRGT Consulting or otherwise made available to the Customer under or in connection with these Terms or an Individual Contract.
3.14. “Foreground Intellectual Property” means any Intellectual Property Rights created or developed by DRGT Consulting in the performance of the Services for the Customer and which is embodied in the Materials. Foreground Intellectual Property expressly excludes any Existing Intellectual Property.
3.15. “GST” is defined in the A New Tax System (Goods and Services Tax) Act 1999.
3.16. “Goods” means either Hardware, Third Party Maintenance Contracts or Software procured or supplied pursuant to these Terms as the context admits.
3.17. “Hardware” means any physical product manufactured by a third party, including any associated third party maintenance service contracts, as specified in a Commercial Engagement Document and includes each individual item, unit or component of such product.
3.18. “Incidental Costs” means delivery costs, Tax, installation, support or maintenance of Goods (after the expiry of any applicable manufacturer’s or licensor’s warranty period), any preparation of the site, or any audit of or work on the Customer’s physical environments, any overtime rates, any miscellaneous costs or expenses including associated travel or accommodation.
3.19. “Individual Contract” means a separate and distinct legally binding contract formed between the Parties in accordance with the provisions of clause 1.2.
3.20. “Individual Contract’s Effective Date” means the commencement date of an Individual Contract.
3.21. “Intellectual Property Rights” or “IPR” includes copyright, trade mark, design, patent, semiconductor or circuit layout rights, trade, business or company names, any right to have confidential information kept confidential or other proprietary rights or any rights to registration of those rights whether created before or after the date of these Terms or the relevant Individual Contract as the context admits and whether existing in Australia or otherwise.
3.22. “Material” or “Materials” means literary works or other works of authorship (such as programs, program listings, programming tools, documentation, reports, drawings and similar works) that DRGT Consulting may deliver to the Customer as part of a Service. The term “Material” or “Materials” does not include licensed software products which are provided in accordance with their EULA.
3.23. “Parties” means DRGT Consulting and the Customer.
3.24. “Personal Information” has the same meaning as in the Privacy Act 1988 (Cth) (as amended).
3.25. “PPSA” means the Personal Property Securities Act 2009 as amended.
3.26. “PPS” Register means the personal property securities register established under section 146 of the PPSA.
3.27. “DRGT Consulting” means DRGT Consulting and any Related Bodies Corporate of DRGT Consulting or xGRC Corporation Pty Ltd.
3.28. “Price” in relation to Goods and Services means the price payable for those Goods and Services as detailed in a Commercial Engagement Document.
3.29. “Related Body Corporate” has the meaning given to that term as in the Corporations Act 2001.
3.30. “Restraint Period” means from an Individual Contract’s Effective Date until 6 months after expiration or sooner termination of that Individual Contract.
3.31. “Services” means the services supplied by DRGT Consulting to the Customer pursuant to an Individual Contract, including any pre-contractual advice provided relating to the Customer’s choice to purchase certain Goods.
3.32. “Service Warranty Period” means 60 calendar days from delivery of the Services.
3.33. “Software” means any licensed, packaged, developed or supported software, such as Third Party Software or Developed Software as the context admits, as specified in a Commercial Engagement Document, ownership of which does not pass to the Customer unless agreed and which use is subject to its applicable EULA. For the purposes of these Terms, Software expressly excludes SAAS.
3.34. “System” means (i) any combination of Hardware or Software intended to be integrated or installed as a system as specified in a Commercial Engagement Document; or (ii) any existing Customer combination of Hardware or Software defined as a system, which is the subject of these Terms, as the context admits.
3.35. “Tax Invoice” has the meaning as defined in the A New Tax System (Goods and Services Tax) Act 1999.
3.36. “Tax” includes any tax, GST, withholding tax, charge, rate, duty or impost imposed by any authority, but does not include any income or capital gains tax.
3.37. “Third Party Maintenance Contract” means a contract for the supply of maintenance services, typically over hardware of software, that is procured by DRGT Consulting on behalf of the Customer, the terms of which form a contract directly between the Customer and the relevant maintenance service provider.
3.38. “Third Party Software” means software that is manufactured, licensed or owned by a third party (other than DRGT Consulting or the Customer) (“Third Party”) and procured on behalf of DRGT Consulting for the Customer, the use of which is subject to that Third Party’s EULA, and where applicable, includes its associated third party support and maintenance contract.
4. Customer’s General Obligations
4.1. The Customer will cooperate fully and act reasonably and in good faith to assist in the timely progress and fulfillment of DRGT Consulting’s obligations pursuant to these Terms and under each Individual Contract including, but not limited to:
(1) not unreasonably withholding or delaying the provision of any agreement, acceptance, information, assistance or other resource required by DRGT Consulting;
(2) providing DRGT Consulting, in a timely manner, with all Customer information, data, documentation and co-operation by its personnel reasonably required by DRGT Consulting to deliver the Goods and Services;
(3) operating and performing these obligations in accordance with any applicable laws;
(4) providing DRGT Consulting with all necessary access to the Customer’s premises and Systems; and
(5) assigning specific managerial, technical and user personnel as reasonably requested by DRGT Consulting to participate in essential activities. The Customer will ensure that all such personnel have the appropriate skills and experience to perform their functions.
4.2. Where required, the Customer will perform its own obligations and responsibilities in accordance with an Individual Contract.
4.3. The Customer will be responsible for all site preparation as required to enable efficient delivery and implementation of the Goods and Services, as the context admits.
4.4. The Customer agrees to ensure that all DRGT Consulting’s personnel, agents or sub-contractors are sufficiently trained in and aware of the Customer’s specific policies and procedures (including workplace health and safety requirements) to the extent necessary and applicable prior to them commencing work at a Customer site. The Customer shall promptly advise DRGT Consulting where such personnel have not been provided with such training.
4.5. The Customer warrants that all information pertaining to its hardware, software or service requirements, its site and specifications is complete, accurate and has been provided to DRGT Consulting prior to formal agreement on an Individual Contract and that all such information is specified in writing in a Commercial Engagement Document and in sufficient detail to satisfy the Customer’s and DRGT Consulting’s requirements of interpretation to enable the successful supply of the relevant Goods and Services to the Customer.
5. DRGT Consulting’s General Obligations
5.1. DRGT Consulting will cooperate fully and act reasonably and in good faith to ensure the timely progress and fulfillment of DRGT Consulting’s obligations pursuant to an Individual Contract.
5.2. DRGT Consulting will use commercially reasonable efforts to provide the Goods and Services (including the provision of any associated Materials) in accordance with the Commercial Engagement Document and any milestones set out therein.
5.3. DRGT Consulting Services will be provided with due care and skill
5.4. DRGT Consulting agrees to operate and perform its obligations in accordance with any applicable laws.
5.5. DRGT Consulting will ensure that its personnel comply with the Customer’s specific policies and procedures that they are trained in and made aware of in accordance with clause 4.4 above.
6. Prices and Payment
6.1. Prices for Goods and Services will be set out in each Commercial Engagement Document. Unless otherwise defined in a Commercial Engagement Document, Prices are exclusive of GST and Incidental Costs.
6.2. Unless otherwise set out in the Commercial Engagement Document, prior to Customer’s acceptance of a Commercial Engagement Document or issue of its valid purchase order, quoted Prices may be modified by DRGT Consulting without notice and are in Australian dollars. DRGT Consulting will use reasonable endeavours to provide notice of any changes to quoted Prices to the Customer.
6.3. The Customer must pay the Price due to DRGT Consulting in accordance with the Commercial Engagement Document or as otherwise agreed pursuant to an approved Credit Application. If a Commercial Engagement Document is silent with respect to payment terms and in the absence of an approved Credit Application, payment is required prior to the supply of the relevant Goods and Services.
6.4. If any sum due under an Individual Contract is not paid by the Due Date, then (without prejudice to DRGT Consulting’s other rights and remedies in addition to the invoice amount), DRGT Consulting reserves the right to:
(1) suspend or cancel its provision of credit to the Customer;
(2) charge interest on such sum on a day to day basis (as well as before any judgment) from the Due Date to the date of payment at the rate of 2% per annum above the prime lending rate of DRGT Consulting‘s principal banker.
(3) refuse further supply of Goods and Services under the Individual Contract; and/or
(4) terminate the Individual Contract without notice.
6.5. DRGT Consulting will provide the Customer with a correctly rendered Tax Invoice that clearly identifies the:
(1) Goods, upon shipment to the Customer; and
(2) Services, as incurred monthly, or as per milestone payment schedule if otherwise agreed in the Commercial Engagement Document.
6.6. All sums properly due to DRGT Consulting under an Individual Contract shall be paid in full and the Customer shall not be entitled to assert against DRGT Consulting any credit, set-off or counterclaim in order to justify withholding payment of any sum properly due. Obligations under an Individual Contract shall be construed as divisible from obligations under any other Individual Contract for the purposes of interpreting this clause.
6.7. Any Price paid shall be applied in priority of the longest outstanding invoices first. Where an Individual Contract does not clearly differentiate its Price between the relevant Goods and Services supplied, DRGT Consulting shall determine such differentiation in its sole discretion (acting reasonably and in good faith) having regard to the nature of the Goods and Services supplied under such Individual Contract and the respective market values of similar offerings of Goods and services.
7. Acceptance of Goods
7.1. Upon receiving the Goods the Customer must inspect and test them for compliance to the Individual Contract.
7.2. Where the Customer believes the Goods received are defective or do not comply with the Individual Contract, the Customer must within seven days of delivery give written notification to DRGT Consulting setting out how the Goods are defective or do not comply with the Individual Contract.
7.3. If the Customer does not comply with clause 7.1 and 7.2, then to the extent permitted by law the relevant Goods will be deemed accepted by the Customer.
8. Third Party Maintenance Contracts
8.1. The procurement of Third Party Maintenance Contracts establishes a maintenance contract directly between Customer and the relevant maintenance provider (usually the Goods manufacturer or owner (in the case of Third Party Software). DRGT Consulting’s responsibility in respect of the procurement of Third Party Maintenance Contracts will be fully set out in the relevant Commercial Engagement Document.
9. Risk and Title
9.1. Risk of loss or damage to Goods will pass to the Customer when the Goods are delivered to the Customer or to the Customer’s authorised representative.
9.2. Notwithstanding the passing of risk the Customer acknowledges and agrees that:
(1) All Goods delivered by DRGT Consulting to the Customer remain the property of DRGT Consulting until the whole of the purchase price and any other charges payable under the Individual Contract are paid in full. Until that time, the Customer must store the Products in such a manner as to show clearly that they are the property of DRGT Consulting and shall upon DRGT Consulting’s demand deliver up those Goods to DRGT Consulting.
(2) that the sale of Goods to the Customer by DRGT Consulting constitutes a registered security interest under the PPSA. DRGT Consulting reserves the right to register its interest in the Goods under the PPSA. DRGT Consulting may not provide notification of registration of its interest in the Goods.
(3) Title to any software Products remains with DRGT Consulting or the applicable third party licensor(s) at all times.
(4) Prior to any sale by the Customer, the Customer shall hold the Goods as bailee for DRGT Consulting and shall return the Goods to DRGT Consulting on demand.
(5) Until payment has been received in full, DRGT Consulting will be entitled to enter the premises of the Customer (or any receiver and manager, administrator, liquidator or trustee in bankruptcy of the Customer) at any reasonable time to recover possession of those Goods for which payment in full has not been made.
(6) The Customer must insure the Goods against loss or damage of any kind for their full value until full payment of the purchase price has been made.
10. Delay and Rescheduling
10.1. If DRGT Consulting is delayed in the performance of its obligations specified in an Individual Contract, DRGT Consulting must:
(1) promptly notify the Customer of that delay;
(2) cooperate with the Customer to establish and implement (to the extent commercially possible) a work-around plan to overcome or minimise the effect of the delay; and
(3) if necessary, submit a Change Order Request.
10.2. To the extent that any delay is caused or contributed to by an act or omission of the Customer; or a Customer related event that is not within the sole control of DRGT Consulting; or a force majeure event as described in clause 20, the Customer must grant an appropriate extension of time to DRGT Consulting to perform its obligations under an Individual Contract.
10.3. If the Customer does not comply with clause 10.2, it acknowledges that DRGT Consulting may terminate the relevant Individual Contract upon giving ten (10) Business Days prior written notice to the Customer.
10.4. To the extent that a delay is caused solely by factors other than those set out in clause 10.2 above, the Customer must either:
(1) grant an appropriate extension of time to DRGT Consulting to perform those obligations; or
(2) provided such delay is a material delay, exercise its rights to terminate the relevant Individual Contract in accordance with the provisions of clause 17.
10.5. DRGT Consulting will have no liability to the Customer in respect of a delay or series of related delays to the extent it is caused by the factors set out in clause 10.2 above.
10.6. Should the Customer cancel or reschedule services within 72 hours of their previously planned and confirmed commencement, then at DRGT Consulting’s discretion, a cancellation fee of up to 50% of the planned service fee may apply.
11. Licensing and Warranty
11.1. The only warranties, conditions or guarantees that apply to Goods and Services are those provided or implied under Australian Consumer Law (if any) together with all warranties expressly stated in writing by DRGT Consulting or those that are provided by the Hardware manufacturer or Software owner. All other warranties, conditions or guarantees in respect of the Goods and Services, whether express or implied, are excluded.
11.2. Software is warranted in accordance with the relevant EULA and the Customer agrees to execute and be bound by the terms of the Software owner’s EULA.
11.3. DRGT Consulting will pass on to the Customer any warranty provided to DRGT Consulting for the Goods and will provide information to the Customer relating to the applicable warranty or EULA.
11.4. DRGT Consulting warrants to the Customer that all Services will be provided with due care and skill and that it will work in good faith to assess and rectify any Services reported during the Service Warranty Period to be not conforming to the relevant requirements documented in the Commercial Engagement Document.
11.5. DRGT Consulting accepts no liability whatsoever for any resultant loss or damage arising directly or indirectly from any connectivity or integration with any existing Customer process, product, materials, environment or System that is not adequately accounted for in a Commercial Engagement Document, or due to inaccurate or incomplete Customer information.
12. Change Control
12.1. Either party may request an amendment to an Individual Contract by Change Order.
12.2. The Customer may request a Change Order by submitting a Change Order Request in writing to DRGT Consulting. DRGT Consulting shall review any Change Order Request in good faith and report to the Customer in writing in the form of a draft Change Order: (i) whether such change is technically feasible and if technically feasible; (ii) the reasonable impact on any DRGT Consulting or Customer milestones contained in such Individual Contract; and (iii) any necessary revision to the Services, Acceptance Tests and Price, as appropriate. DRGT Consulting shall be under no obligation to accept the terms of any Change Order Request and the Customer shall be under no obligation to accept the terms of any draft Change Order. The Customer shall bear all costs and expenses associated with any variation requested by the Customer to an Individual Contract including the cost of any feasibility study connected with the analysis of such variation
12.3. DRGT Consulting may request a Change Order by submitting a draft Change Order to the Customer. Within ten (10) Business Days of receiving a draft Change Order from DRGT Consulting, Customer shall review the draft Change Order in good faith and report to DRGT Consulting in writing whether the terms of such draft Change Order are acceptable. Customer shall be under no obligation to accept the terms of any draft Change Order.
12.4. If the terms of a draft Change Order are accepted by both DRGT Consulting and the Customer the draft Change Order shall be signed by the parties. DRGT Consulting shall be entitled to suspend the delivery of the Goods and Services, without liability, to the Customer, until such time as the issues raised by such Change Order Request have been settled by mutual agreement of the parties.
12.5. Any Change Order shall be attached to the relevant Individual Contract. After execution of a Change Order by both parties the amendments detailed therein shall be incorporated into the relevant Individual Contract and Price as appropriate and shall form part of the Individual Contract to which it relates.
13. Changes to Assumptions
13.1. The Customer acknowledges that changes to any of the Assumptions agreed to by the parties in the relevant Commercial Engagement Document may affect the ability of DRGT Consulting to deliver the Goods and Services in accordance with the Individual Contract and in such event the parties shall work together in good faith to minimise the impact of the change. Any change to an Individual Contract resulting from a change to any of the Assumptions shall be managed by Change Order in accordance with the provisions of Clause 12. DRGT Consulting shall have no liability for any delays or increased costs in the delivery of the Goods and Services which result directly from changes to any of the Assumptions.
14. Limitations of Liability
14.1. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THESE TERMS OR AN INDIVIDUAL CONTRACT OR OTHERWISE, NEITHER PARTY WILL BE LIABLE TO THE OTHER OR A THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL LOSS OR DAMAGES WHETHER SUCH DAMAGES ARE ALLEGED AS A RESULT OF TORTIOUS CONDUCT (INCLUDING NEGLIGENCE) OR BREACH OF CONTRACT OR A LIABILITY ARISING UNDER AN INDEMNITY OR OTHERWISE EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER ANY REMEDY HEREIN SHALL HAVE PROVEN INEFFECTIVE. SUCH LOSS OR DAMAGES SHALL INCLUDE BUT NOT BE LIMITED TO COST OF REMOVAL AND REINSTALLATION OF THE GOODS, CLAIMS BY THIRD PARTIES, LOSS OF GOODWILL, LOSS OF PROFITS, LOSS OF USE OF DATA OR SOFTWARE, INTERRUPTION OF BUSINESS OR OTHER ECONOMIC LOSS BUT NOTHING IN THIS CLAUSE SHALL OPERATE TO EXCLUDE LIABILITY FOR DEATH OR PERSONAL INJURY RESULTING FROM EITHER PARTY’S NEGLIGENCE.
14.2. If the Customer is a consumer as defined in section 4B of the Competition and Consumer Act 2010 the Goods come with guarantees that cannot be excluded under Australian Consumer Law. The Customer is entitled to a replacement or refund for a major failure and for compensation for any other reasonably foreseeable loss or damage. Customer is also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure.
14.3. Subject to the provisions of clause 14.1 and 14.2, the maximum liability of DRGT Consulting to the Customer in aggregate for all claims, damages, costs, losses and expenses, made against DRGT Consulting in contract, tort, pursuant to an indemnity or for any other common law or statutory cause of action or any wilful, unlawful or negligent act or omission of DRGT Consulting or its employees, agents or subcontractors, under or in connection with:
(1) any loss of or damage to the Customer’s or a third party’s tangible property, real or personal, (but excluding loss of software or data), shall be limited to the sum of $5,000,000 per occurrence and in the aggregate;
(2) any breach or misappropriation of Intellectual Property Rights or intangible property or breach of Confidentiality, shall be limited to the sum of $250,000 per occurrence and in the aggregate;
(3) other than loss or damage covered by (1) or (2), any loss, damage, cost or expense the subject matter of an Individual Contract shall be limited to the lower of either the amount of $50,000 and the Price paid by the Customer to DRGT Consulting for such Goods and/or Services under the relevant Individual Contract;
(4) For all other claims not covered by (1), (2) or (3), DRGT Consulting’s liability shall be limited to the Price paid by the Customer to DRGT Consulting for all Goods and Services supplied by DRGT Consulting in the 12 months prior to the date the cause of action arose.
14.4. In respect of any Goods and Services provided for the benefit of any Customer Group Company, DRGT Consulting will have the benefit of the limitations and exclusions of liability available to it under these Terms as if DRGT Consulting was supplying those Goods and Services to the Customer and the Customer agrees to indemnify DRGT Consulting in respect of any liability to each Customer Group Company to the extent the liability would not have arisen had those Goods and Services been provided to the Customer.
14.5. The Customer’s exclusive remedy for any and all damages under these Terms or an Individual Contract is against DRGT Consulting and not any of its subcontractors. DRGT Consulting remains fully responsible for the performance of all work in accordance with these Terms notwithstanding the engagement of a subcontractor.
14.6. Subject to the limitations and exclusions of liability in this clause, if a party (‘Claimant’) makes a claim or commences proceedings against the other party (‘Recipient’) seeking indemnification against, compensation for or recovery of any liabilities, losses, damages, costs or expenses suffered or incurred by the Claimant in connection with these Terms or an Individual Contract, the Recipient’s liability for that claim or those proceedings will be reduced proportionately to the extent that any act or omission of the Claimant or any of its officers, agents, employees or contractors causes or contributed to those liabilities, losses, damages, cost or expenses.
15. Confidentiality
15.1. Except as expressly provided elsewhere under these Terms, each party shall maintain in confidence the Confidential Information disclosed by the other party and apply security measures no less stringent than the measures which that party applies to protect its own like information (but in any event not less than a reasonable degree of care) to prevent unauthorised disclosure and use of the Confidential Information.
15.2. The parties agree that information shall not be regarded as Confidential Information and that the recipient shall have no obligation with respect to any information which the recipient can demonstrate:
(1) is already known to or in the possession of the recipient without obligations of confidentiality prior to its receipt from the disclosing party or which is publicly available at the time of disclosure; or
(2) is or becomes known to the public through no wrongful act of the recipient; or
(3) is received from a third party who is not in breach of any obligation of confidentiality in respect thereof; or
(4) is disclosed to a third party by the disclosing party without a restriction of confidentiality; or
(5) is disclosed with the prior written permission of the owner; or
(6) is disclosed by the recipient in compliance with a legal requirement of a governmental agency or court of law; or
(7) is independently conceived of by the recipient without reference to the Confidential Information.
16. Intellectual Property
16.1. Unless otherwise agreed in a Commercial Engagement Document, DRGT Consulting will retain all right, title and interest (including ownership of copyright) in the Foreground Intellectual Property.
16.2. DRGT Consulting retains all right, title and interest (including ownership of copyright) in or is entitled to use, its Existing Intellectual Property.
16.3. DRGT Consulting will deliver one (1) copy of the specified Materials to the Customer. DRGT Consulting grants the Customer a perpetual, non-exclusive, worldwide, paid-up licence (including the right to sublicense to its Related Bodies Corporate) to use, execute, reproduce, modify, adapt, display and perform and otherwise exercise all of DRGT Consulting’s Existing Intellectual Property or Foreground Intellectual Property in the Material to the extent necessary to obtain the benefit of the Services for the Customer’s internal business purposes only. The Customer agrees to reproduce the copyright notice and any other legend of ownership on any copies made under this licence.
16.4. DRGT Consulting shall use reasonable endeavours to obtain all third party assignments, licences, consents and waivers, including waivers of moral rights, to enable the Customer to use the Foreground Intellectual Property in the Material.
16.5. If compliance by DRGT Consulting with the Customer’s designs, specifications or instructions, or use by DRGT Consulting of Intellectual Property Rights received from the Customer or the Customer’s agent, results in DRGT Consulting being subject to a claim for infringement of any Intellectual Property Right of a third party, the Customer agrees to indemnify DRGT Consulting against any claims, demands, damages, costs and expenses made against or suffered by DRGT Consulting as a result of any such claim or action.
16.6. Subject to the confidentiality obligations set out in clause 15 of these Terms, any idea, concept, know-how or technique which relates to the subject matter of a Service and is developed or provided by either of the Parties, or jointly by both, in the performance of a Service may (subject to applicable patents and copyrights) be freely used by either of the Parties.
17. Termination
17.1. Either party may terminate an Individual Contract immediately where the other party:
(1) commits a material breach of these Terms or an Individual Contract which is not capable of being remedied;
(2) fails to remedy a material breach of these Terms or an Individual Contract which is capable of remedy within 60 days of receipt of a written notice specifying such breach; or
(3) commits an act of insolvency, comes under any form of insolvency administration or assigns its rights otherwise than in accordance with these Terms.
17.2. On termination of an Individual Contract:
(1) the accrued rights and remedies of each Party remain unaffected.
(2) DRGT Consulting will deliver a Tax Invoice(s) to the Customer in respect of:
i. any delivered Goods and Services that DRGT Consulting has not invoiced the Customer at the date of termination of the relevant Individual Contract.
ii. any Incidental Costs, restocking fees or other expenses required to be paid by DRGT Consulting to terminate the Individual Contract.
iii. any rescheduling fee that may arise due to the cancelation of Services.
(3) Each party shall at the other party’s option, either destroy or return to the other party any of its Confidential Information, including any copies thereof in its possession or control.
(4) DRGT Consulting may repossess any of its property in the possession, custody or control of the Customer; and
(5) if DRGT Consulting is the terminating party, DRGT Consulting may be regarded as discharged from any further obligations under the Contract.
18. Recruitment of Employees
18.1. During the Restraint Period, neither party, its employees, sub-contractors or agents may solicit for employment to or accept any approach for employment from, either directly or indirectly, any person who is employed or contracted by the other party.
18.2. Either party must immediately advise the other party if a person who is employed or contracted by the other party seeks to be employed or contracted by the first mentioned party before the end of the Restraint Period.
18.3. In the event that a situation arises where both parties agree that it is in the interests of a DRGT Consulting employee to transfer their employment to the Customer, unless otherwise agreed, the Customer will pay DRGT Consulting a fee equal to 20% of the gross salary offered by the Customer to any of DRGT Consulting’s personnel employed by the Customer.
19. Subcontracting
19.1. Unless set out to the contrary in a Commercial Engagement Document, DRGT Consulting may sub-contract the performance of an Individual Contract or any part of an Individual Contract.
20. Force Majeure
20.1. DRGT Consulting is excused from performing its obligations to the extent it is prevented by circumstances beyond its reasonable control (other than lack of funds for any reason), including but not limited to acts of God, natural disasters, acts of war, riots and strikes.
21. Privacy
21.1. Each party must ensure that any collection, use, disclosure or transfer of Personal Information complies with all applicable laws, rules and regulations in Australia, including without limitation the Privacy Act 1988 (Cth) and the Australian Privacy Principles contained in Schedule 3 to that Act.
22. Disputes
22.1. In the event of a dispute arising, the parties will establish a dispute committee consisting of representatives from both parties and any approved sub-contractors within five (5) Business Days of the date of the dispute arising.
22.2. A party shall raise a dispute by giving written notice to the other party and stating therein that its requires a dispute committee to be established in accordance with clause 22.1 and also stating the nature and substance of the dispute.
22.3. If the dispute is not settled by agreement within ten (10) Business Days after the notice referred to in clause 22.2 is given, the parties may agree to appoint a mediator and seek in good faith to settle the dispute through mediation. If the parties are unable to agree on a mediator within ten (10) Business Days after the expiration of the ten (10) Business Days referred to in this clause 22.3, the mediator must be a person nominated by the Australian Commercial Disputes Centre. Either party may request such nomination referred to in this clause 22.3 at any time after the expiration of the second ten (10) Business Day period.
22.4. In the event that a mediator is appointed, all parties to this agreement agree to accept the determination of the mediator without question and to take whatever actions or pay whatever charges the mediator decides are reasonable.
23. General
23.1. DRGT Consulting may amend these Terms at any time by publishing the revised Terms on the DRGT Consulting website www.DRGT Consulting.com.au. By continuing to place orders for Products or Services, the Customer will be deemed to have accepted the revised Terms.
23.2. Notices: A notice, consent, approval, request or demand in connection with these Terms:
(1) must be in writing and in English;
(2) must be signed by the party giving it or that party’s authorised representative, officer, attorney, or solicitor;
(3) must be either:
i. left at or posted by prepaid post (airmail, if posted outside Australia) to the address of the addressee specified by the parties, or if the addressee notifies another address for receipt of documents under this clause, then at or to that address;
ii. sent by electronic mail to an authorised representative;
(4) is taken to be received:
i. if hand delivered, on delivery;
ii. if posted in Australia, on the third Business Day after posting;
iii. if posted outside Australia, on the seventh Business Day after posting; and
iv. if sent by electronic communication, on the next Business Day after receiving notification that the notice has been transmitted successfully, provided that no undeliverable notice or out of office notification was received by the sender.
(5) unless a later date is specified in it, takes effect on the date it is taken to be received.
23.3. Assignment: Either party may with the prior written consent of the other party (which will not be unreasonably withheld or delayed) at any time transfer, assign or novate any or all of its rights, obligations, benefit or interest under these Terms or an Individual Contract.
23.4. Public Statements: Subject to clause 23, neither party shall make any public statement about these Terms or the terms of an Individual Contract unless it has first obtained the written consent from the other party.
23.5. Severability: The provisions contained in each clause and sub-clause of these Terms shall be enforceable independently of each of the others and if a provision of these Terms is, or becomes, illegal, invalid, void or deemed unenforceable by any court or administrative body of competent jurisdiction it shall not affect the legality, validity or enforceability of any other provisions of these Terms. If any of these provisions is so held to be illegal, void, invalid or unenforceable but would be legal, valid or enforceable if some part of the provision were deleted, the provision in question will apply with such modification as may be necessary to make it legal, valid or enforceable.
23.6. Independent Parties: DRGT Consulting and the Customer are independent parties. Neither company nor their employees, consultants, contractors or agents are agents, employees or joint venturers of the other party, nor do they have the authority to bind the other party by contract or otherwise to any obligation. Neither party will represent to the contrary, either expressly, implicitly, by appearance or otherwise.
23.7. Waiver: Failure or delay by either party to enforce any provision of these Terms shall not be deemed a waiver of future enforcement of that or any other provision. No amendment or waiver of any provision of these Terms shall take place unless so agreed in writing by DRGT Consulting.
23.8. Entire Agreement: These Terms constitute the entire agreement between the parties with respect to the subject matter hereof and supersedes and replaces any prior condition, warranty, representation, statement, agreement, undertaking, indemnity (whether negligently or innocently) imposed, given or made by a party, whether written, oral or implied and may only be amended in writing and signed by both parties. Where an Individual Contract is formed pursuant to and incorporating these Terms, such Individual Contract will constitute the entire agreement between the parties with respect to the subject matter contained in that Individual Contract and supersedes and replaces any prior condition, warranty, representation, statement, agreement, undertaking, indemnity (whether negligently or innocently) imposed, given or made by a party, whether written, oral or implied and may only be amended in writing and signed by both parties.
23.9. Governing Law and Jurisdiction: Unless set out to the contrary in a Commercial Engagement Document, these Terms shall be governed by and construed with reference to the laws of the State of Victoria and each party submits to the non-exclusive jurisdiction of the courts of Victoria and the Federal Court of Australia.