LOGICALL PTY LTD ACN 102 407 732
Trading as 2excel Software and App Development ABN: 28 102 407 732
Terms and Conditions of Engagement for Services
In the interpretation of these terms and conditions:
“2excel” means Logicall Pty Ltd ACN 102 407 732, trading as 2excel Software and App Development, its executors, agents, employees, successors or assigns.
“Client”means the person(s) specified at Item 1 of Schedule 1, and:
“Confidential Information” means all information which will pass between the parties relating to the Contract including but not limited to any information which a party specifies in writing as being confidential, or which by its nature and by the circumstances of its disclosure is, or could reasonably be expected to be regarded as confidential to a party except for information that is or becomes:
“Contract” means the contract between 2excel and the Client for the provision of Services, which among other things, incorporates these Terms and Conditions.
“Goods” means all documents, records, papers, information, results or reports [#Insert anything further#]
“GST” means Goods and Services Tax as defined within the A New Tax System (Goods and Services Tax Act 1999 (Cth).
“Fee” means the fee(s) specified at Item 3 of the Schedule.
“Intellectual Property” means all and any inventions and discoveries, patents, patent applications, trademarks, service marks, trade names, domain names, product names, brand names, registered designs, unregistered design rights, copyrights, know how, trade secrets and rights in confidential information, URLs, and any other intellectual property rights, whether registered or unregistered, and any rights to registration of such rights and including all applications and rights to apply for any of the foregoing anywhere in the world in connection with or arising out of or in relation to the Intellectual Property.
“Quotation” means the quotation attached to these terms and conditions. To the extent of any inconsistency between these terms and conditions and the Quotation, the Quotation is to prevail.
“Services” means those services specified in Item 4 of the Schedule.
“Trademarks” means both registered (worldwide) and unregistered trade marks.
Quotations remain valid for acceptance for a period of fourteen (14) days from date specified, which at such time the Quotation, unless otherwise agreed by 2excel in writing, becomes invalid.
3.1 The Client is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions and upon acceptance of the Quotation, the Client enters a Contract, places an order for, or accepts the Services provided by 2excel.
3.2 These terms and conditions may only be amended with the prior written consent of 2excel, in its absolute discretion, and shall prevail to the extent of any inconsistency with any other document or Contract between the parties.
3.3 Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 9 of the Electronic Communications Act 2000 (SA) or any other applicable provisions of that Act or any Regulations referred to in that Act.
4.1 Subject to clause 4.2, the Client acknowledges and accepts that 2excel shall, without prejudice, accept no liability in respect of any alleged or actual error(s) and/or omission(s):
4.2 In the event such an error and/or omission occurs in accordance with clause 4.1, and is not attributable to the negligence and/or wilful misconduct of 2excel, the Client shall not be entitled to treat any Contract or agreement as repudiated nor render it, or any Quotation, invalid.
2excel agrees to perform the Services with due care, skill and diligence, in a timely manner, as agreed, and in accordance with the Client’s requirements, to the extent that it is reasonable to do so.
6.1 The Client agrees to:
6.2 The Client warrants and acknowledges that in providing the Services, 2 excel is relying on the information provided by the client and 2excel will take no responsibility for any shortcoming in relation to the delivery or outcome of the Services where such shortcoming was caused or contributed to by an omission or inaccuracy of information provided.
6.3 The Client shall be liable for any loss incurred by 2excel as a result of the Client’s failure to comply with this clause 6.
Except as provided expressly in these terms and conditions or required by mandatory operation of law, 2excel makes no warranty whether express or implied or other representations under these terms and conditions in relation to the performance of the Services. 2excel’s liability in respect of these warranties is limited to the fullest extent permitted by law.
8.1 2excel may licence and/or assign all or any part of its rights and/or obligations under any contract or agreement without the Client’s consent.
8.2 The Client cannot licence or assign any of its rights and/or obligations without the written approval of 2excel.
8.3 2excel may elect to subcontract out any part of the Services but shall not be relieved from any liability or obligation under the Contract by so doing. Furthermore, the Client agrees and understands that they have no authority to give any instruction to any of 2excel’s sub-contractors without the prior written authority of 2excel.
9.1 At 2excel’s sole discretion, the Fee shall be either:
9.2 Unless otherwise stated the Fees are exclusive of any GST. Where GST is payable on a supply made by 2excel under this agreement, 2excel may charge the Client an additional amount equal to the GST payable on that supply.
9.3 At 2excel’s sole discretion, a non-refundable deposit may be required.
9.4 2excel reserves the right to change the Fee (‘Variation’), at 2excel’s sole discretion, if:
9.5 Variations will be charged on the basis of 2excel’s original Quotation, calculated at 2excel’s current rate per hour.
9.6 The Client shall be required to respond to any Variation submitted by 2excel within five (5) working days. Failure to do so will entitle 2excel to add the cost of the Variation to the Fee. Payment for all Variations must be made in full at the time of their completion.
9.7 Time for payment of the Services being of the essence, the Fee will be payable by the Client on the date/s determined by 2excel, which may be:
9.8 Payment may be made by bank cheque, electronic/online banking, credit card (a surcharge may apply per transaction), or by any other method as agreed to between the Client and 2excel.
9.9 Receipt by 2excel of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised.
9.10 The Client shall not be entitled to set off against, or deduct from the Fee, any sums owed or claimed to be owed to the Client by 2excel nor to withhold payment of any invoice because part of that invoice is in dispute.
10.1 In consideration of 2excel agreeing to supply the Services the Client charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Client either now or in the future, to secure the performance of the Client of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
10.2 The Client indemnifies 2excel from and against all 2excel’s expenses, including legal costs on an indemnity basis, incurred in 2excel’s exercising their rights under this clause.
10.3 The Client irrevocably appoints 2excel and each director of 2excel as the Client’s true and lawful attorney(s) to perform all necessary acts to give effect to the provision of this clause 10 including, but not limited to, signing any document on the Client’s behalf.
11.1 In this clause financing statement, financing change statement, security agreement and security interest have the meanings given to them by the PPSA.
11.2 Upon assenting to these terms and conditions in writing the Client acknowledges and agrees that these terms and conditions constitute a security agreement for the purposes of the PPSA and creates a security interest in all Goods and/or collateral – being a monetary obligation of the Client to 2excel for Services that have previously been supplied and that will be supplied in the future by 2excel to the Client.
11.3 2excel may register a Security Interest (as defined under the PPSA) against the assets of the Client on the PPS Register pursuant to the PPSA.
11.4 Upon request by 2excel, the Client must sign any further documents and/or provide any further information which 2excel requires, including but not limited to the full name, address and date of birth of each Client which is an individual, to:
11.5 The Client must not register or permit to be registered a Financing Change Statement in relation to a security interest held by 2excel.
11.6 The parties acknowledge and agree that:
11.7 The Parties agree that for the purposes of section 115 of the PPSA, the following sections of the PPSA will not apply to any collateral or goods or property which are subject to that Security Interest:
12.1 Where legislation implies any term, condition or warranty in the Contract, which cannot be excluded, restricted or modified, such term, condition or warranty shall be deemed to be included in the Contract, restricted to (at 2excel’s sole discretion):
12.2 2excel shall not be liable to any person other than the Client in relation to the performance of the Services and the Client shall indemnify and keep indemnified 2excel in respect of any loss or damage suffered by any third party in relation to the performance of the Services, in accordance with these terms.
13.1 2excel warrants that 2excel owns the Intellectual Property Rights in the Intellectual Property delivered to the Client in the provision of the Services.
13.2 The Client recognises that all Intellectual Property remains the property of 2excel and 2excel retains copyright in all documents, software, designs and other like instruments supplied to the Client and the Client shall not use or deal with such documents, software, designs and other like instruments other than for the purpose that the Services are provided and the Client will take all such steps as practicable to ensure that the Intellectual Property will vest and remain vested in 2excel. Under no circumstances may any documents, software, designs, Intellectual Property and other like instruments supplied to the Client be used without the express written permission of 2excel.
13.3 The Client warrants that all designs, specifications or instructions given to 2excel will not cause 2excel to infringe any patent, registered design or trademark in the execution of the Services and the Client hereby indemnifies and agrees to keep indemnified and hold harmless 2excel against all liability, losses or expenses incurred by 2excel in relation to or in any way directly or indirectly connected with any breach of copyright or any rights in relation to any copyright infringement, including any action by a third party against 2excel in respect of any such infringement.
13.4 Unless otherwise agreed in writing by 2excel, 2 excel remains the proprietor of all Intellectual Property used in performing the Services. Upon completion of the Services, 2excel grants to the Client a non-exclusive, transferable, royalty-free, perpetual licence to use the Intellectual Property owned by 2excel which have been used in completion of the Services.
13.5 Subject to clause 16.2, in the event that 2excel terminates the Contract due to a breach of the Client’s obligations under Contract, such licence shall automatically cease and the Client shall return all documents, software, designs and other like instruments and Intellectual Property to 2excel and shall cease to have any rights to use or otherwise deal with the documents, software, designs and other like instruments, and Intellectual Property.
13.6 The Client agrees that 2excel may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs or Intellectual Property which 2excel has created for the Client.
14.1 Confidential Information
14.2 Return of Documents Upon the written request of a party to another party or parties, the other party or parties must return to the requesting party any documents or material, whether in hard copy, soft copy, electronic or digital format, which contains Confidential Information and must not keep any copies in any form, other than as may reasonably be required by the other party or parties to properly perform their obligations under the Contract.
15.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of 2.5% per calendar month (and at 2excel’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
15.2 Further to any other rights or remedies 2excel may have under Contract, if a Client has made payment to 2excel, and the transaction is subsequently reversed, the Client shall be liable for the amount of the reversed transaction.
15.3 Without prejudice to 2excel’s other remedies at law 2excel shall be entitled to cancel all or any part of the remaining Services under Contract which remains unfulfilled and all amounts owing to 2excel shall, whether or not due for payment, become immediately payable if:
16.1 Without prejudice to any other remedies 2excel may have at law or otherwise, 2excel may terminate a Contract with the Client for a breach of any obligation (including those relating to payment) under these terms and conditions, by providing fourteen (14) days written notice to the Client.
16.2 At 2excel’s sole discretion, 2excel may allow the Client to remedy the breach within fourteen (14) days’ notice, or another timeframe as 2excel elects, and in being satisfied with the remedy of the breach by the Client, 2excel will not terminate the Contract.
16.3 The parties may terminate a Contract for any reason whatsoever by mutual agreement by providing 30 days written notice, signed by both parties, of their intent to terminate the Contract, the terms of the termination shall be determined by mutual agreement.
16.4 Upon providing the notice of intent to terminate the Contract by mutual agreement, 2excel agrees to continue providing the Services until the cessation of the notice period.
16.5 In the event a Contract is terminated for any reason whatsoever, including a breach of Contract by the Client, without limitation to any other rights afforded to 2excel under this agreement or at common law, the Client will pay 2excel for the portion of the Services completed to date and time of termination. 2excel shall not be liable for any loss or damage whatsoever arising from such termination.
16.6 2excel shall not be liable for any loss or damage the Client suffers whatsoever as a result of 2excel exercising their rights under this clause 1516.
17.1 Mediation If any dispute arises between the Parties (Dispute) as to any matter or thing of whatever nature arising under or in connection with the Contract or agreement, then such Dispute shall, unless resolved within twenty-one (21) days from the date on which notice of the Dispute is given by a Party, be referred for mediation at the request of any Party to the Dispute, to:
17.2 Role of Mediator The role of any mediator is to assist in negotiating a resolution of the Dispute as cost effectively as possible within thirty (30) days of his or her appointment.
17.3 Confidentiality Any information or documents disclosed by a party to a Dispute under this clause:
17.4 Costs Each party to the Dispute must bear its own costs of complying with this clause and the parties to the Dispute must bear equally the costs of any mediator engaged.
17.5 Arbitration In the event that the parties are unable to reach a resolution of the dispute by mediation, then the parties shall comply with the following dispute resolution process:
17.6 Survival of this clause This clause survives termination of the Contract.
18.1 Any waiver by a party of any right, power or remedy under a Contract must be in writing signed by the party granting it. A waiver is only effective in relation to the particular obligation or breach in respect of which it is given. It is not to be taken as an implied waiver of any other obligation or breach or as an implied waiver of that obligation or breach in relation to any other occasion.
18.2 The fact that a party fails to do, or delays in doing, something the party is entitled to do under Contract does not amount to a waiver.
18.3 Any amendment or variation to a Contract is not effective unless it is in writing and signed by both parties.
19.1 The parties acknowledge and agree that in the event:
19.2 2excel shall not be liable to the Client for any loss caused by any failure to observe the terms and conditions of any Contract entered into between the parties, where such failure is occasioned by any Force Majeure Event.
Any Contract entered into by the parties shall, so far as possible, be interpreted and construed so as not to be invalid, illegal or unenforceable in any respect, but if a provision, on its true interpretation or construction is held to be illegal, invalid or unenforceable:
Legal ownership in and title to all documents, records, papers and any other material created or obtained by 2excel in the performance of the Services or in dealing with your matter, belongs to 2excel and does not pass to anybody, until the matter is completed and all outstanding Fees, costs and disbursements have been paid to 2excel. 2excel will retain possession of all of those documents, records, papers and any other materials, until the matter is completed and all outstanding fees, costs and disbursements have been paid.
A notice or other communication to a party must be in writing and delivered to that party or that party’s legal practitioner in one of the following ways:
Any Contract entered into by the parties may be signed or executed by any number of counterparts (including via facsimile and email) each of which will be an original but such counterparts taken together constitute one and the same instrument and the date of the Contract will be the date on which it is executed by the last party.
24.1 The parties acknowledge that nothing contained or implied in a Contract will create or constitute, or be deemed to create or constitute, a partnership between the parties. A party must not act, represent or hold itself out as having authority to act as the agent of or in any way bind or commit the other parties to any obligation.
24.2 The Contract between the parties is intended as a contract of service and not any other relationship and, in particular, not the relationship of employer and employee, principal and agent or the relationship of partnership.
In the event that the Client is acting in the capacity of trustee of a trust (Trust) at any time, whether or not 2excel may have notice of the Trust, the Client covenants with 2excel as follows:
Both parties acknowledge and agree that:
27.1 The failure by either party to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect that party’s right to subsequently enforce that provision.
27.2 These terms and conditions and any contract or agreement to which they apply shall be governed by the laws of South Australia, the state in which 2excel has its principal place of business, and are subject to the jurisdiction of the courts in South Australia.
27.3 Subject to clause 7, 2excel shall be under no liability whatsoever to the Client for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by 2excel of these terms and conditions (alternatively 2excel’s liability shall be limited to damages which under no circumstances shall exceed the price of the Contract).
27.4 The Client agrees that 2excel may amend these terms and conditions by notifying the Client in writing. These changes shall be deemed to take effect from the date on which the Client accepts such changes, or otherwise at such time as the Client makes a further request for 2excel to provide Goods or Services to the Client.
27.5 Both parties warrant that they have the power to enter into a Contract and have obtained all necessary authorisations to allow them to do so, they are not insolvent and any Contract entered into by the parties creates binding and valid legal obligations on them.