LOGICALL PTY LTD ACN
Trading as 2excel Software and App Development ABN:
Terms and Conditions of Engagement for Services
In the interpretation of these terms and conditions:
“2excel” means Logicall Pty Ltd ACN
“Client” means those entities specified in this Proposal, and:
(a) if there is more than one Client, is a reference to each Client jointly and severally; and
(b) includes the Client’s executors, administrators, successors and permitted assigns.
“Commercialise” includes without limitation:
(a) to manufacture, sell, license, assign, or hire for commercial benefit or otherwise exploit a product or process or other subject matter in which Intellectual Property rights subsist;
(b) to provide a service for commercial benefit;
(c) to license or authorise any person to do any of the above for commercial benefit; or
(d) any acts that are related to the acts set out in (a), (b) or (c)
But excludes a Party licensing Intellectual Property for a non-monetary purpose and a non-Commercialised purpose.
“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:
(a) already in the possession of the other parties without the other parties being in breach of the agreement;
(b) available to the public from sources other than the party whose Confidential Information is being affected.
“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 prepared by 2excel in the course of providing the Services.
“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 the ‘Your Investment’ page of this Proposal.
“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.
“Pre-Existing IP” means any Intellectual Property:
(a) existing prior to the execution of this Contract; and
(b) obtained or created after the execution of the Services by 2Excel other than as a result of the performance of the Services.
“Proposal” means this Proposal provided by 2excel as amended, supplemented or varied in writing from time to time by agreement of the parties and includes any annexures or attachments.
“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 the ‘Scope of Works’ documents provided by 2excel as amended, supplemented or varied in writing from time to time by agreement of the parties.
“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 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. Errors and Omissions
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):
(a) resulting from an inadvertent mistake made by 2excel in the formation and/or administration of the Quotation or any Contract or agreement; and/or
(b) contained or omitted in and/or from any documents (hard copy and/or electronic) supplied by 2excel in respect of the Services.
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.
5. 2excel’s Responsibilities and Obligations
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. Client’s Responsibilities, Obligations and Warranties
6.1 The Client agrees to:
(a) provide 2excel with all relevant information and documents relating to the Client’s requirements;
(b) promptly and satisfactorily answer all reasonable enquiries and wherever possible, provide any information reasonably requested by 2excel;
(c) take all reasonable steps to avoid doing or omitting anything which may hinder/delay 2excel in performing the Services;
(d) advise 2excel in writing of any material fact that may affect the performance of the Services;
(e) pay all Fees and charges in connection with the performance of the Services, when due and payable;
(f) discharge its obligations under the Contract reasonably and in good faith; and
(g) give 2excel not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client and/or any other change in the Client’s details (including but not limited to, changes in the Client’s name, address, contact phone or fax number(s), or business practice).
6.2 The Client warrants and acknowledges that in providing the Services, 2excel 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.
7. No Warranty
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. Assignment and Sub-Contracting
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. Payment and Variations
9.1 At 2excel’s sole discretion, the Fee shall be either:
(a) subject to clause 9.4, 2excel’s Fee for performance of the Services, as specified in the Contract, plus disbursements; or
(b) as indicated on any invoice provided by 2excel to the Client; or
(c) the Fee as at the date of delivery of the Services according to 2excel’s current hourly rate.
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:
(a) a variation to 2excel’s Quotation is requested in writing to 2excel. 2excel shall endeavour to comply with such variation requests; or
(b) 2excel is required to significantly amend or alter the Services due to error or omission by the Client in their instructions, or failure to comply with their obligations. 2excel shall provide written notice of any variation requiring the Client’s consent, such consent may not be unreasonably withheld.
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:
(a) in advance (for the full or part amount);
(b) on delivery of the Services;
(c) by way of instalments/progress payments in accordance with 2excel’s payment schedule;
(d) the date specified on any invoice or other form as being the date for payment; or
(e) failing any notice to the contrary, the date which is thirty (30) days following the date of any invoice given to the Client by 2excel.
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.
9.11 2excel reserves the right to charge the Client an administrative fee of $30 (‘Administrative Fee’) on any occasion 2excel is required to follow up on any Fee,
invoice or instalment/progress payment which becomes outstanding. The Administrative Fee will be added to the outstanding Fee(s).
10. Security and Charge
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. Personal Property Securities Act 2009 (“PPSA”)
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:
(a) register a Financing Statement (as defined under the PPSA) or Financing Change Statement (as defined under the PPSA) in relation to a security interest or interests held by 2excel against the Client;
(b) register any other document on the PPS Register required to be registered by the PPSA in relation to a security interest or interests held by 2excel against the Client; and
(c) correct a defect in a document referred to in Clause 11.4(a) or (b).
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:
(a) 2excel is not required to disclose to an interested person information in connection with 2excel’s security interest pursuant to section 275(6) of the PPSA, unless required to do so pursuant to the PPSA, or to not contravene a law of the Commonwealth, a state or Territory or the general law;
(b) the Client is the debtor for the purpose of section 275(6)(a) of the PPSA;
(c) neither party will disclose any information of the kind specified in section 275(a) of the PPSA; and
(d) this Clause 11.6 constitutes a confidentiality agreement for the purpose of section 275(6)(a) of the PPSA.
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:
(a) section 95 (notice by secured party of removal of accession);
(b) section 118 (enforcing Security Interests in accordance with land law decisions)
(c) section 121(4) (notice by secured party of enforcement of Security Interest in liquid assets);
(d) section 125 (obligation of secured party to dispose of or retain collateral after seizure);
(e) section 130, to the extent that it requires the secured party to give any notice to the grantor (notice by secured party of disposal of collateral);
(f) section 132(3)(d) (obligation of secured party to show amounts paid to other secured parties in statement of account);
(g) section 132(4) (statement of account by secured party if it does not dispose of collateral within prescribed period);
(h) section 135 (notice by secured party of retention of collateral);
(i) section 142 (redemption of collateral); and
(j) section 143 (reinstatement of Security Agreement).
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):
(a) The supply of part or all of the Services again; or
(b) The reasonable cost of supplying part or all of the Services again.
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. Intellectual Property
13.1 Ownership –
(a) The Client owns and retains all right, title and interest, including all intellectual property rights, in and to:
(1) all materials, documents and information provided to 2excel in order for 2excel to provide the Services.
(2) all data, reports, information and software provided to the Client by 2excel prepared exclusively in association with the Services (subject to 2excel’s underlying rights in the Services); and
(3) any Intellectual Property developed solely for the purposes of carrying out the Services (subject to 2excel’s underlying rights in the Services).
Except for the Intellectual Property specified in 13.1(b) of this Contract.
(b) Unless otherwise agreed in writing by 2excel, 2excel remains the proprietor of all Pre-Existing IP. Upon completion of the Services, 2excel grants to the Client a non-exclusive, transferable, royalty-free, perpetual licence to use the Pre-Existing IP owned by 2excel which have been used in completion of the Services.
(c) For the avoidance of doubt, but for any rights expressly granted under the Contract, nothing in these terms and conditions affects the ownership of Pre-Existing IP.
13.2 Use and protection of Pre-Existing IP
(a) The Client must not, without the prior written consent of 2excel, use the Pre-Existing IP other than in strict accordance with this Contract.
(b) The Client represents and warrants to 2excel that it will not assign, encumber or otherwise deal with, dispose of or Commercialise 2excel’s Pre-Existing IP without prior written consent, to which 2excel may refuse in its absolute discretion.
13.3 2excel warrants that 2excel owns the Intellectual Property Rights in the Pre-Existing Intellectual Property delivered to the Client in the provision of the Services.
13.4 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.
13.5 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 Pre-Existing IP to 2excel and shall cease to have any rights to use or otherwise deal with the Pre-Existing IP.
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
(a) The parties may exchange Confidential Information relating to the Contract.
(b) The parties covenant that they will:
i. not disclose the Confidential Information of any other party, or permit it to be disclosed, to any persons unless it is required to do so by law, and then only after giving the other party prior written notice;
ii. limit access of the Confidential Information to those members of its staff reasonably requiring the Confidential Information on the proviso that the confidentiality of the Confidential Information is similarly respected by those members of staff in the same manner as provided in this Deed;
iii. not use Confidential Information in any way that would be harmful to the best interests of the other parties;
iv. not use Confidential Information in any way other than as contemplated by this Deed without the prior written permission of the party whose Confidential Information is being affected; and
v. not copy, in whole or in part, any Confidential Information without the prior written permission of the party whose Confidential Information is being affected.
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 The Client shall indemnify 2excel from and against all costs and disbursements incurred by 2excel in recovering the debt (including but not limited to administrative fees, legal costs on an indemnity basis, and bank dishonour fees).
15.3 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.
15.4 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:
(a) any money payable to 2excel becomes overdue, or in 2excel’s reasonable opinion the Client will be unable to make a payment when it falls due;
(b) the Client becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.
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 16.
17. Dispute Resolution
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:
(a) a mediator agreed on by the Parties to the Dispute; or
(b) if the Parties to the Dispute are unable to agree on a mediator within seven (7) days of the expiry of such notice, a mediator appointed by the then current chairperson of the president of the Law Society of South Australia or the president’s nominee,
provided that the mediation is commenced within seven (7) days of the referral or such later time as agreed by the Parties to the Dispute.
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.
Any information or documents disclosed by a party to a Dispute under this clause:
(a) must be kept confidential; and
(b) may not be used except to attempt to resolve the Dispute.
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.
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:
(a) any party to the dispute may refer the dispute to arbitration.
(b) arbitration will be conducted as follows:
i. the arbitration will be conducted in accordance with the Rules of the Australian Centre for International Commercial Arbitration (ACICA Rules) current at the time of the reference to arbitration;
ii. the seat of the arbitration will be in Adelaide, South Australia;
iii. the language of the arbitration will be English;
iv. one arbitrator will be appointed in accordance with the ACICA Rules (unless the appointment of additional arbitrators is agreed by the parties);
v. any award will be final and binding on the parties unless it manifests in error; and
vi. the parties agree that:
a. they wish to achieve a just, quick and cheap resolution of any Dispute;
b. any arbitration conducted under this clause will not mimic court proceedings and the practices of those courts will not regulate the conduct of the proceedings before the tribunal;
c. in conducting the arbitration, the tribunal must take into account the matters set out in clauses (i) and (vi) above.
(c) the arbitration must be held in Adelaide, South Australia unless the parties and mediator agree otherwise;
(d) all parties to the arbitration may be represented by a lawyer, accountant and/or business advisor;
(e) the parties agree that:
i. everything that occurs before, during and after the arbitration will be confidential and in closed session;
ii. no documents brought into existence specifically for the purpose of the arbitration process will be called into evidence in any subsequent litigation by any of the parties to the dispute unless agreed between all parties;
iii. the arbitrator shall have power to make a determination binding on the parties to the dispute.
(f) it will be the role of the arbitrator to act fairly, in good faith and without bias with the purpose of making a binding determination upon the parties and he/she will treat all matters in confidence;
(g) the arbitrator is to deal with any matter as expeditiously as possible.If a dispute arises between the parties, the parties agree to act in good faith and the complainant must not commence any court or arbitration proceedings, except where that party seeks urgent interlocutory relief, unless it has first complied with this clause.
17.6 Survival of this clause
This clause survives termination of the Contract.
18. Waiver and amendments
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. Force Majeure
19.1 The parties acknowledge and agree that in the event:
(a) 2excel’s performance of their obligations under any Contract between the parties is delayed due to an act, omission or event occasioned by causes beyond 2excel’s reasonable control including but not limited to by fire, flood, epidemic and/or pandemic, riot, strike, war, restrictions and prohibitions or any other actions by any government or semi government authorities (‘Force Majeure Event’), 2excel will be entitled to a reasonable extension of time for the observance of their obligations under the Contract.
(b) Subject to clauses 16.5 and 16.6, 2excel is unable to fulfill their obligations under the Contract between the parties occasioned by any Force Majeure Event, 2excel may terminate the Contract for the performance of the Services.
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:
(a) that provision shall, so far as possible, be read down to the extent that it may be necessary to ensure that it is not illegal, invalid or unenforceable and as may be reasonable in all the circumstances so as to give it a valid operation; or
(b) if the provision or part of it cannot be effectively read down, that provision or part of it shall be deemed to be void and severable and the remaining provisions of the Contract shall not in any way be affected or impaired and shall continue notwithstanding that illegality, invalidity or unenforceability; and
(c) to the extent permitted by law, the parties must act in good faith to reach agreement as to a replacement valid and enforceable provision.
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:
(a) Delivered personally; or
(b) Posted to their address when it will be treated as having been received on the second business day after posting; or
(c) Faxed to their facsimile number when it will be treated as received when it is transmitted; or
(d) Sent by email to their email address, when it will be treated as received when it enters the recipient’s information system.
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. Relationship of the Parties
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:
(a) the Contract extends to all rights of indemnity which the Client now or subsequently may have against the Trust and the trust fund;
(b) the Client has full and complete power and authority under the Trust to enter into the Contract and the provisions of the Trust do not purport to exclude or take away the right of indemnity of the Client against the Trust of the trust fund. The Client will not release the right of indemnity or commit any breach of trust or be a party to any other action which might prejudice that right of indemnity;
(c) the Client will not without the consent in writing of 2excel (2excel will not unreasonably withhold consent), cause, permit or suffer to happen any of the following events:
(a) the removal, replacement or retirement of the Client as Trustee of the Trust;
(b) any alteration to or variation of the terms of the Trust;
(c) any advancement or distribution of capital of the Trust; or
(d) any resettlement of the trust property.
26. Entire Agreement and Modifications
Both parties acknowledge and agree that:
(a) the Contract shall constitute the entire agreement between the parties and shall supersede and override all previous communications, either oral or written, between the parties; and
(b) no agreement or understanding varying or extending a Contract shall be binding upon any party unless arising out of the specific provisions of the Contract.
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.