1. Contract

1.1 Except where there is a written contract to the contrary, these Terms and Conditions apply to all contracts for the supply of Works by or on behalf of Us to You.

1.2 Any variation to these Terms and Conditions is not effective unless agreed in writing by Us.

1.3 To the extent of any inconsistency between a Letter and these Terms and Conditions, the terms of the Letter prevail.

1.4 Acceptance of the Contract for the purposes of clause 1.1 will occur on the earlier of:

1.4.1 execution of a Letter by or on behalf of You; or

1.4.2 upon the acceptance of any Works by You;

(‘Acceptance Date’).

2. Works

2.1 We must supply the Works to You in accordance with the Contract.

2.2 You must, at your own Cost, no later than seven (7) business days after formation of the Contract, make available to Us all information necessary for Us to provide the Works in accordance with the Contract. You warrant the accuracy of the information provided and that We are entitled to rely upon the information in providing the Works.

2.3 We may, from time to time, engage Contractors to assist in providing or to provide the Works on our behalf.

2.4 We must and must cause each Contractor or employee of ours that provides Works to:

2.4.1 provide the Works to the best of their abilities and knowledge, in a proper and professional manner and with the standard of care and skill normally employed by duly qualified and experienced persons in the performance of comparable work;

2.4.2 not engage in conduct that is misleading, deceptive or unconscionable and to not make false or misleading representations or statements;

2.4.3 comply with all applicable standards, laws and regulations; and

2.4.4 undertake and obtain all regulatory checks, approvals and qualifications required to provide the Works.

2.5 We must comply with all reasonable directions given by You in relation to the Works.

3. Goods

3.1 Delivery and risk of the Goods

3.1.1 Subject to clause 3.1.2, You will, at your expense, arrange to pick up the Goods from Us;

3.1.2 You may request any Goods to be delivered to You and delivery will be made by Us at our sole discretion and at your expense to your Premises or in accordance with your written instructions, by such transport as We may in our absolute discretion determine;

3.1.3 delivery dates given for the supply of Goods are estimates only and late delivery is not grounds for termination or non-payment by You;

3.1.4 Except as required by law or pursuant to these Terms and Conditions, We are not under any obligation to accept returned Goods for any reason;

3.1.5 Risk in the Goods passes to You upon pick up or delivery of the Goods pursuant to clauses 3.1.1 and 3.1.2, respectively;

3.1.6 If payment in full has not been made by You when You take possession of the Goods, insurance against all risks whatsoever must be maintained by You from when You take possession of the Goods.

3.2 Property in the Goods

3.2.1 Property in the Goods will not pass to You until payment in full has been made by You to Us for all Goods provided to You by Us pursuant to clause 3.1.

3.2.2 Until payment has been made in full and property passes:

(a) You hold all Goods as bailee and as a fiduciary for Us and will securely store the same separately from your other goods so as to clearly identify the Goods as ours;

(b) subject to clause 16, You are authorised to sell or use the Goods but You will hold the book debt and the proceeds of sale or use on trust for Us and will account to Us for any overdue amount from the proceeds thereof, and at our request assign the book debt arising from such sale or use to Us; and

(c) We will be entitled to require You to return unsold Goods failing which You irrevocably authorise Us to enter your Premises to repossess the Goods without notice on the occurrence of any of the following events:

(i) You fail to make payment of any amount outstanding; or

(ii) You suffer an Insolvency Event.

3.3 Goods warranty

3.3.1 We warrant that the Goods will be fit for purpose as described in the Contract.

3.3.2 Except as expressly provided to the contrary in the Contract, all representations, warranties, terms and conditions in relation to Goods (whether implied or otherwise) are hereby excluded to the maximum extent permitted by law.

3.3.3 Damages for breach of any warranty by Us will be limited to replacement of the Goods or the supply of the Goods again or the cost of replacement of the Goods or having the Goods supplied again, at our discretion, and will not extend to any indirect or consequential loss or damages (including, without limitation loss of profit, loss of opportunity or otherwise) whatsoever.

3.4 Quantity of Goods delivered

3.4.1 All claims for short delivery, non delivery and/or incorrect pricing must be advised to Us within 14 days of invoice, together with documentation supporting the claim.

3.4.2 You agree that We will not accept claims for short delivery where the shortfall claim is less than 5% of the quantity of particular goods ordered.

3.4.3 Excess delivery of up to 5% of quantities ordered must be accepted and payment made for such excess quantities.

4. Intellectual Property

4.1 Background IP
Each party retains ownership of its Background IP including any Improvements made in relation to that Background IP.

4.2 Project IP
Subject to clause 6.1, the ownership of all Intellectual Property (other than Background IP) developed by Us, or assigned to Us by Our Contractors in relation to the Works will upon its creation vest in Us and remain our sole property (‘Project IP’).

4.3 Licensed Intellectual Property
Any Intellectual Property of a Contractor which is licensed to Us in order to perform the Works does not form part of the Project IP for the purposes of clause 7.

5. Fees

5.1 In consideration for Us providing the Works in accordance with the Contract, You must pay Us the Fees plus any applicable GST, without any set-off or deduction.

5.2 You must pay 50% of the Fees to Us (deposit) immediately upon Us providing a tax invoice to You. The remaining balance is due and payable before shipment of the goods.

5.3 The Fees may be increased by Us from time to time to reflect any reasonable additional Costs incurred by Us in providing the Works in accordance with the Contract. You agree that any such increases are reasonable.

6. Standard Fee

6.1 If You agree in writing to pay the Standard Fee, We agree to grant you a perpetual, non-exclusive and non-transferable licence to:

6.1.1 use the Project IP (excluding Background IP) for the purpose of exploiting the Works; and

6.1.2 utilise such of Our Background IP as is required to enable You to fully utilise the Project IP in exploiting the Works.

7. Premium Fee
If You agree in writing to pay the Premium Fee, We agree to:

7.1 assign all of the Project IP (excluding Background IP) in the Works to You;

7.2 do all things necessary to give effect to the assignment in clause 7.1 including executing any further document required by You; and

7.3 give You a perpetual licence to utilise such of Our Background IP as is required to enable You to fully utilise the Project IP.

8. Royalties

8.1 If indicated in a Letter, Royalties will be payable upon Your Commercialisation of the Project IP.

8.2 Royalties must be paid on Your Gross Profit at the rate provided in a Letter.

8.3 If Royalties are payable under clause 8.1, You must keep and on reasonable request make available to Us written, true and accurate records of the Commercialisation of the Project IP and payment of the Royalties.

9. Payment

9.1 Unless stated otherwise, a reference to money in this Contract means Australian currency.

9.2 The amount payable for any taxable supply in connection with this Contract excludes GST and must be increased by the rate of GST imposed by law.

9.3 Terms used in this clause 6 have the meanings given in A New Tax System (Goods and Services Tax) Act 1999 (Cth).

10. Default on Payment

10.1 If You fail to pay in accordance with the terms of the Contract any amount owing to Us, We are entitled to charge interest on all amounts not paid by their due date and You agree to pay that interest.

10.2 Interest will be calculated on the outstanding amounts on a daily basis from their due date until the date the amounts are paid in full, at a rate not exceeding the maximum rate charged by our primary bankers on overdrafts in excess of $100,000.

10.3 Any Costs incurred by Us in recovering any outstanding monies from You, including debt collection agency fees and solicitors costs must, if directed by Us, be paid by You on an indemnity basis.

10.4 For the avoidance of doubt, our rights under this clause 6 are in addition to our right to terminate the Contract in accordance with clause 12.

11. Term
The Works will be provided for the Term, subject to earlier termination under clause 12.

12. Termination

12.1 We may:

12.1.1 terminate the Contract for any reason by providing You with 30 days’ written notice;

12.1.2 terminate the Contract immediately by written notice if You fail to pay the Fees in accordance with clause 3; or

12.1.3 terminate the Contract by written notice if You breach a material obligation under this Contract and fail to remedy the breach within 30 days following notice by Us.

12.2 Each party may terminate the Contract immediately by written notice if an Insolvency Event occurs to the other party.

12.3 Termination of this Contract is without prejudice to any other legal right or remedy of a party and the accrued rights of the parties and in particular, but without limitation, our right to recover Fees.

13. Confidentiality

13.1 Each party must :

13.1.1 keep the Confidential Information confidential;

13.1.2 use its best efforts to prevent any unauthorised access, copying, use or disclosure of the Confidential Information; and

13.1.3 immediately notify the other party if it suspects or becomes aware of any unauthorised access, copying, use or disclosure of the Confidential Information.

13.2 The parties must not access, copy, use or disclose any Confidential Information unless and to the extent:

13.2.1 reasonably necessary to perform this Contract;

13.2.2 required by law; or

13.2.3 all other parties consent.

At the conclusion of the Term, the parties must return to one another any Confidential Information belonging to the other party.

14. Release and Indemnity

14.1 To the extent permitted by law, You agree that We are not liable for and release Us from and also indemnify Us against all Claims arising from or in connection with:

14.1.1 Costs;

14.1.2 damage to or destruction of property; or

14.1.3 injury or death; caused or contributed to by any of our acts, omissions, negligence or defaults, our employees, agents, suppliers or sub-contractors arising from or connected with the Works.

15. Dispute Resolution

15.1 Neither party may commence court proceedings in relation to this Contract without complying with this clause 15 first, save as may be required to obtain urgent injunctive relief.

15.2 The parties must attempt to resolve any dispute in relation to this Contract by negotiation.

15.3 If a dispute is not settled by the parties in 10 business days of one party sending the other party written notice that they are in dispute, the dispute must be mediated in accordance with the Australian Commercial Disputes Centre Guidelines for Commercial Mediation.

16. PPSA

16.1 The PPSA applies to these Terms and Conditions and the terms attaches, collateral, financing change statement, financing statement, perfected and personal property as used in this clause 16 have the meaning given to them in the PPSA.

16.2 You must:

16.2.1 do anything (including making amendments to these Terms and Conditions or executing a new security document) for the purpose of:

(a) ensuring a Security Interest created under these Terms and Conditions, attaches to the collateral intended to be covered by that Security Interest, the Security Interest is enforceable, perfected, maintained and otherwise effective, and any Security Interest created under these Terms and Conditions has the priority contemplated by these Terms and Conditions;

(b) enabling Us to prepare and register a financing statement or financing change statement if We deem necessary;

(c) enabling Us to exercise any of our powers in connection with any Security Interest created under or provided by these Terms and Conditions; and

16.2.2 provide information requested by Us to enable Us to exercise any of our powers or perform our obligations under the PPSA.

16.3 Any Security Interest arising under clause 3.2 attaches to the Goods at the earlier of You taking possession of the Goods or Us dispatching the Goods to your Premises.

16.4 You must not change your name (including but not limited to any entity name or trading name), your address or place of incorporation or any other details required to be contained in a financing statement under the PPSA without our written consent.

16.5 Except if section 275(7) of the PPSA applies, We and You agree not to disclose any information of the kind referred to in section 275(1) of the PPSA that is not publicly available and You agree not to provide any authorisation for the disclosure of such information.

16.6 You agree that:

16.6.1 We have no obligation to dispose of or retain personal property it seizes within a reasonable time under section 125 of the PPSA;

16.6.2 You must not complain of damage, cost or inconvenience caused by Us in taking apparent possession of personal property under section 126 of the PPSA;

16.6.3 following default, You have no rights to redeem personal property under section 142 of the PPSA; and

16.6.4 You have no rights to reinstate these Terms and Conditions after default under section 143 of the PPSA.

16.7 You waive your rights to receive:

16.7.1 a notice of our proposal to remove personal property which has become an accession under section 95 of the PPSA;

16.7.2 a notice of our proposal to exercise our rights with land law under section 118(1)(b) of the PPSA;

16.7.3 a notice of our action (arising under section 120(2) of the PPSA) in relation to an interest in collateral under section 121(4) of the PPSA;

16.7.4 a notice of our seizure of certain personal property under section 123(2) of the PPSA;

16.7.5 a notice of our proposal to dispose of personal property under section 130 of the PPSA;

16.7.6 details of the amounts paid to other secured parties in a statement of account provided by Us under section 132(3)(d) of the PPSA;

16.7.7 a statement of account under section 132(4) of the PPSA;

16.7.8 a notice of our proposal to retain personal property under section 135 of the PPSA; and

16.7.9 a copy of, or notice of, any verification statement confirming registration of a financing statement or a financing change statement relating to any Security Interest under, or provided for by these Terms and Conditions.

16.8 You waive any rights You have to object to our proposal to purchase personal property under section 129(2)(b) of the PPSA and object to our proposal to retain personal property under section 134(2)(b) of the PPSA. Anything required by Us to be done under this clause 16 must be done by You at your expense. You agree to pay our costs in connection with action taken by Us in connection with this clause 16. You undertake to be responsible for the full costs incurred by Us (including actual legal fees and disbursement on a solicitor and client basis) in obtaining an order pursuant to section 182 of the PPSA.

17. General

17.1 Entire Agreement
The Contract contains the entire agreement between the parties in respect of the subject matter of the Contract and supersedes and replaces any prior written or oral agreement, representations or understandings between them relating to such subject matter. The parties confirm that they have not entered into this Contract on the basis of any representation that is not expressly incorporated into this Contract.

17.2 Assignment
The rights and obligations under the Contract are personal and cannot be assigned by You without our prior consent. We are free to assign the Contract without your consent.

17.3 Governing Law
The laws in South Australia govern the Contract. The parties submit to the exclusive jurisdiction of the courts of South Australia and the Federal Court of Australia (Adelaide Registry).

17.4 Amendment of Contract
Unless otherwise specified in this Contract, the rights and obligations under the Contract cannot be varied or amended without the written agreement of the parties.

17.5 Notices
A consent, approval, request or notice must be in writing and may be given by pre-paid post, email or facsimile to the address notified to all parties.

17.6 Force Majeure
We are not responsible to You under any circumstances for any breach of our obligations caused through factors beyond our reasonable control including but not limited to acts of God, acts of any Government, war or other hostility, disaster, fire, explosion, power failure, strikes or lockouts or inability to obtain necessary services or supplies.

17.7 Miscellaneous

17.7.1 The rights and obligations under the Contract:

(a) are not conferred upon a person who is not a party;

(b) are in addition to and do not affect any other rights that party may have;

(c) will not merge with any act done to complete or perform the Contract; and

(d) cannot be waived except by express notice specifying the waiver.

17.7.2 The Contract does not create a relationship of principal and agent, employer and employee, partnership or joint venture between the parties.

17.7.3 A provision of the Contract must not be construed to the disadvantage of a party because that party was responsible for drafting or including that provision and/or that provision benefits that party.

17.7.4 Any provision of the Contract must be read down to any extent necessary to be valid. If that is not possible, it must be severed. All other provisions of the Contract are unaffected.

17.7.5 If You are a trustee of a trust, You are bound by the Contract both personally and in your capacity as trustee for each trust for which You act as trustee.

18. Definitions
In these Terms and Conditions:

18.1 Acceptance Date has the meaning provided at clause 1.4.

18.2 Background IP means all Intellectual Property owned by or licensed to a party and made available for the purpose of carrying out the Works, and which has been developed prior to the date of this Contract, or is acquired or created independently by a party after the date of this Contract, and includes Intellectual Property which either party can use on other projects.

18.3 Commercialise in relation to Intellectual Property means to manufacture, sell, hire or otherwise exploit a product or process, or to provide a service, incorporating that Intellectual Property, or to license or assign Intellectual Property to any third party to do any of those things.

18.4 Claim means each claim, action, proceeding, damage, loss, cost, expense or liability incurred or suffered by or made or recovered however it arises and whether present, future, contingent, ascertained or unascertained;

18.5 Confidential Information means any information of the other party of which a party becomes aware (other than information that is otherwise lawfully known by that party) by virtue of being party to the Contract and includes information relating to our business affairs and employees or Contractors but excludes any information that is in the public domain otherwise than as a result of a breach by a party to the Contract of these Terms and Conditions;

18.6 Contract means the agreement between You and Us for the provision of Works as set out in a Letter and these Terms and Conditions, as in each case amended from time to time;

18.7 Contractor means a person engaged by Us (who is not an employee of Us) to provide the Works, or to assist Us in providing the Works;

18.8 Costs means all liabilities, costs, disbursements, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses);

18.9 Fees means the fees payable under the Contract by You to Us for the provision of Works and includes both the Standard Fee and Premium Fee;

18.10 Goods means any material or product produced by Us, or a Contractor engaged by Us, specified in a Letter as part of the Works;

18.11 Improvements means any direct adaptation, modification or enhancement which improves the performance of functionality of Intellectual Property as a result of carrying out the Contract;

18.12 Insolvency Event means any of the following events occurring to a person, or any action being taken that could result in any of the following events occurring to a person:

18.12.1 being Deregistered;

18.12.2 stating that they are, or being, Insolvent;

18.12.3 being an Insolvent Under Administration;

18.12.4 having a Controller appointed over any of their assets;

18.12.5 becoming an Externally-Administered Body Corporate;

18.12.6 having a Provisional Liquidator appointed to them;

18.12.7 any of the events listed in section 459C(2) of the Corporations Act 2001 (Cth);

18.12.8 except to reconstruct or amalgamate while solvent, entering into a scheme of arrangement, composition with or assignment for the benefit of creditors;

18.12.9 obtaining protection from their creditors under any applicable law;

18.12.10 a Liquidation; or

18.12.11 anything analogous or having a substantially similar effect to any of these events; and any term in title case used in this clause 18.12 has the meaning given by the Corporations Act 2001 (Cth).

18.13 Intellectual Property and Intellectual Property Rights include property and rights in connection with copyright (including future copyright and rights in the nature of or analogous to copyright), know-how, trade mark, service mark, design, inventions (including patents), semi-conductor or circuit layout rights, trade, business or company names, or other proprietary rights, or any rights to registration of such rights (including all renewals and extensions) whether created before or on or after this Contract.

18.14 Letter means each letter from time to time addressed to You by Us in which We offer to provide Works to You;

18.15 Liquidation includes provisional liquidation, administration, receivership, compromise, arrangement, amalgamation, official management, reconstruction, winding up, dissolution, assignment for the benefit of creditors, arrangement or compromise with creditors, bankruptcy or death;

18.16 Net Profit means the profit You make from Commercialising the Project IP after deducting the costs associated with making and selling products derived or based upon the Project IP.[n1]

18.17 PPSA means the Personal Property Securities Act 2009 (Cth);

18.18 Premises means the premises of a party as indicated in a Letter;

18.19 Premium Fee means the fee so indicated in a Letter in consideration for the Intellectual Property Rights in clause 6.1;

18.20 Security Interest has the same meaning as in the PPSA;

18.21 Standard Fee means the fee so indicated in a Letter payable in consideration for the Intellectual Property Rights provided in clause 0;

18.22 Term means the period commencing on the Acceptance Date and continuing for the Timeframe indicated in a Letter, subject to any earlier termination in accordance with clause 12, together with any extension beyond that term as agreed in writing by the parties;

18.23 Terms and Conditions means all the terms and conditions stated in this document;

18.24 Us or We has the meaning provided in a Letter;

18.25 Works means any or all of the services and/or Goods to be provided as are indicated in a Letter to form part of the Contract and any other Works as may be agreed by the parties in writing from time to time.

18.26 You means the party identified as such in a Letter;