Standard Quotation Terms and Conditions
1 Supply of goods and services
1.1 Bytecan will supply the goods and/or provide the services in accordance with and as specified in the attached quotation.
2 Standards
2.1 Bytecan will perform its obligations:
2.1.1 with due care and skill;
2.1.2 in accordance with all applicable safety, environmental and safety policies and procedures.
3 Hazardous materials
3.1 Bytecan will immediately notify the principal of any hazardous materials (including asbestos) discovered by Bytecan in providing the services.
3.2 The principal must comply with all environmental laws applicable to the services and, in particular, any hazardous materials.
3.3 The principal indemnifies Bytecan for any legal costs, fines or expenses arising out of any breach by the principal, its employees or agents of this clause 3.
4 Payment
4.1 The principal agrees to pay to Bytecan the fee specified in the quotation for the provision of the services. That fee is exclusive of any goods and services tax (GST) which must be paid in addition.
4.2 All fees are payable by the principal to Bytecan within 30 days of the date of Bytecan's tax invoice.
4.3 Bytecan may charge interest at the rate of 10% per annum on any tax invoice rendered to the principal which remains due and unpaid. That interest will commence to accrue on the 31st day after the date of Bytecan's tax invoice.
5 Title
5.1 The title to any goods supplied by Bytecan does not pass to the principal until the principal has paid Bytecan's tax invoice in respect of those goods.
6 The site
6.1 The principal warrants that the site(s) will be available for Bytecan to provide the goods and services at all appropriate times.
7 Confidentiality
7.1 The principal undertakes that it will not (except in the proper course of its duties under this agreement or as required by law or by Bytecan) disclose to any person any confidential information relating to Bytecan or this agreement of which it has become possessed as result of this agreement or in the negotiations preceding this agreement including the terms of this agreement.
7.2 The obligations under this clause 7 survive termination of this agreement.
8 Intellectual property
8.1 The parties agree that:
8.1.1 the intellectual property of a party existing prior to the date of this agreement remains the sole and exclusive property of that party; and
8.1.2 the right, title and interest in any intellectual property created by the services or under this agreement is vested in Bytecan.
8.2 The principal must:
8.2.1 assign all right, title and interest in any intellectual property referred to in paragraph 8.1.2 to Bytecan or as Bytecan directs; and
8.2.2 provide to Bytecan all reasonable assistance required by Bytecan to protect that intellectual property.
9 Force Majeure
9.1 If a party becomes unable, wholly or part, by force majeure, to carry out any duty or obligation under this agreement, that party:
9.1.1 must give the other party prompt written notice of the force majeure with reasonably full particulars of it and the probable extent to which that party will be unable to perform, or be delayed in performing, that duty or obligation;
9.1.2 cannot be required to carry out that duty or obligation so far as it is affected by the force majeure during, but no longer than, the continuation of the force majeure; and
9.1.3 must do everything possible to remove the force majeure as quickly as possible.
9.2 The requirement that any force majeure must be overcome or remedied by doing everything possible does not require a party to settle any strike, or other labour dispute on terms contrary to that parties' wishes or to contest the validity or enforcement of any law, regulation or order by way of legal proceedings.
10 Insurance
10.1 The principal must obtain from an insurer acceptable to Bytecan and during the term of this agreement and for a period of 12 months after its termination, maintain, and on request from Bytecan provide certificates of currency for, the following insurances:
10.1.1 property damage for its assets;
10.1.2 workers' compensation and common law liability for employees; and
10.1.3 public liability in the sum of $20,000,000.00 for each claim, with Bytecan as an interested party.
10.2 The principal shall notify Bytecan if it:
10.2.1 becomes aware that any conditions precedent to the validity of the insurances in 10.1 are not, or are no longer, satisfied;
10.2.2 has made or is making a claim under any of the insurances in 10.1 which may materially affect the cover provided by the insurances; or
10.2.3 becomes aware that the insurance cover has been, or is about to be, cancelled.
11 No liens
11.1 The parties agree that:
11.1.1 the principal has no right or claim to any interest in any goods or property of Bytecan; and
11.1.2 the principal cannot claim any lien or other security over those goods or property.
12 Termination
12.1 Bytecan may at any time terminate this agreement or part of this agreement, for any reason by giving the principal 30 days' notice.
12.2 Bytecan may at Bytecan's option immediately and without notice to the principal terminate this agreement if the principal:
12.2.1 commits any breach of this agreement and that breach is not remedied within 7 days of written notice by Bytecan; or
12.2.2 resolves to go into liquidation or has a petition for its winding up presented or enters into any scheme or arrangement with its creditors or has a liquidator, provisional liquidator, receiver or official manager appointed.
12.3 On termination of this agreement the principal will cooperate, in good faith, with Bytecan to effect the orderly transfer of the principal's information, documentation or data base created as part of the performance of the services.
13 Liability and indemnity
13.1 The principal must at all times indemnify and hold Bytecan, its officers, employees and agents harmless from and against all actions, claims, charges, costs, expenses, losses, damages and other liability arising out of or otherwise in connection with any wilful, unlawful or negligent conduct of the principal its officers, employees, agents or subcontractors in connection with this agreement.
13.2 To the maximum extent permitted by law Bytecan is not liable to the principal by way of indemnity or by reason of any breach of this agreement or any statutory duty or any common law duty for any direct, punitive, special, indirect or consequential loss or damages suffered by the principal.
14 Assignment and sub-contracting
14.1 Bytecan may assign, transfer, encumber or otherwise dispose of or deal with any of its rights or obligations under this agreement without the principal's consent.
15 Relationship of parties
15.1 The relationship between the parties is that of principal and contractor so that nothing contained in this agreement constitutes either of them as agent, joint venturer or partner of the other, or creates any agency, joint venture or partner of the other, or creates any agency, joint venture or partnership for any purpose.
15.2 Except as otherwise specifically provided in this agreement, a party has no authority to act for, or to create or assume any responsibility or obligation on behalf of the other party.
16 Dispute resolution
16.1 If a dispute arises out of or relates to this agreement, including any dispute as to breach or termination of this agreement or as to any claim in tort, in equity or under any law, a party cannot commence any court or arbitration proceedings relating to the dispute unless that party has complied with the following clauses except where that party seeks urgent interlocutory relief.
16.2 A party claiming that a dispute has arisen must serve notice specifying the nature of the dispute.
16.3 On receipt of that notice by that other party, the parties must endeavour in good faith to resolve the dispute expeditiously using informal dispute resolution techniques such as mediation, expert evaluation or determination or similar techniques agreed by them.
16.4 If the parties do not agree within 7 days of receipt of the notice, or any further period agreed in writing by them, as to:
16.4.1 the dispute resolution technique and procedures to be adopted;
16.4.2 the timetable for all steps in those procedures; and
16.4.3 the selection and compensation of the independent person required for that technique,
the parties must mediate the dispute in accordance with the Mediation Rules of the Law Society of New South Wales and must request the President of the Law Society of New South Wales or the President's nominee to select the mediator and determine the mediator's remuneration.
17 Effect of agreement
17.1 This agreement contains the entire agreement of the parties with respect to its subject matter. This agreement sets out the only conduct relied on by the parties and supersedes all earlier conduct by the parties with respect to its subject matter.
18 Severability
18.1 Any provision in this agreement which is invalid or unenforceable is to be read down, if possible, so as to be valid and enforceable, and is otherwise to be severed to the extent of the invalidity or unenforceability, without affecting the remaining provisions of this agreement.
19 No waiver
19.1 No failure to exercise and no delay in exercising any right, power or remedy under this agreement will operate as a waiver. Nor will any single or partial exercise of any right, power or remedy preclude any other or further exercise of that or any other right, power or remedy.
20 Governing law
20.1 This agreement is governed by the laws of New South Wales.
20.2 The parties submit to the non-exclusive jurisdiction of courts exercising jurisdiction there.
21 Notices
21.1 A notice given under this agreement must be signed by or on behalf of the party giving it, addressed to the party to whom it is to be given and:
21.1.1 delivered to that party’s address;
21.1.2 sent by pre-paid mail to that party’s address; or
21.1.3 transmitted by facsimile to that party’s address.
21.2 A notice given to a party under this clause is treated as having been given and received:
21.2.1 if delivered to a party’s address, on the day of delivery if a business day, otherwise on the next business day;
21.2.2 if sent by pre-paid mail, on the third business day after posting; or
21.2.3 if transmitted by facsimile to a party’s address and a correct and complete transmission report is received, on the day of transmission if a business day, otherwise on the next business day.
22 Definitions
agreement the agreement between the parties contained in this document;
business day any day except a bank or public holiday throughout New South Wales or a Saturday or Sunday;
Bytecan Bytecan Pty Ltd ABN 98 050 100 644
force majeure an exception event or circumstance which, in respect of the party claiming force majeure:
(a) is beyond its control;
(b) could not reasonably have been insured or provided against before entering this agreement;
(c) having arisen, could not reasonably have been avoided or overcome; and
(d) is not substantially attributable to the other party,
such events or circumstances being limited to the following:
(a) war, hostilities (whether the war be declared or not), invasion, act of foreign enemies;
(b) rebellion, terrorism, revolution, insurrection, military or usurped power, or civil war;
(c) riot, commotion, disorder, strike or lockout by persons other than either Bytecan or the principal;
(d) the effect of any munition of war, explosive materials, ionising radiation or contamination; and
(e) acts of governmental agencies;
goods the goods described in the attached quotation;
party Bytecan or the principal as the case may be and parties means both of them;
principal the party described as the principal on page 1;
services the services described in the attached quotation.