BASIS OF CHARGE
All fees stated by Vaulta to undertake the project are final. Any additional works outside the scope of this proposal will be quoted separately and provided to the Client. Written approval from the Client is required to commence any works outside the scope of this proposal.
TERM OF QUOTATION
The basis for the quotation of fees is firm for one (1) month from the date of this proposal. Proposals not accepted within that time may be subject to adjustment.
COMMENCEMENT
Work on each stage of the project will commence upon receipt of written instructions and payment from the Client. Commencement of work by Vaulta following your payment and written instructions to proceed will be deemed your acceptance of the Conditions of Contract.
PAYMENT
Where not paid in advance, or written otherwise, any accounts must be settled strictly within thirty (30) days of invoice date. Accounts outstanding for a period in excess of sixty (60) days will be subject to a charge for interest calculated at the rate of 2% per month (24% per annum). All amounts are in Australian Dollars ($AUD).
PROGRESS
Vaulta will be under no obligation to proceed to an ensuing phase of the project until all outstanding fees have been paid in full.
INFRINGEMENT INDEMNITY
a. Infringement Indemnity. Each party (“Provider”) will defend and indemnify the other party (“Recipient”) against a claim that any information, design, specification, instruction, software, data or material furnished by the Provider (“Material”) and used by the Recipient for the Services infringes a copyright or trade secret provided that: (a) the Recipient notifies the Provider in writing within 30 days of the claim; (b) the Provider has sole control of the defence and all related settlement negotiations; and (c) the Recipient provides the Provider with the assistance, information and authority reasonably necessary to perform the above, although reasonable out-of-pocket expenses incurred by the Recipient in providing such assistance will be reimbursed by the Provider. This section states the parties’ entire liability and exclusive remedy for infringement.
b. Exceptions. The Provider will have no liability for any claim of infringement resulting from: (a) the Recipient’s use of a superseded or altered release of some or all of the Material if infringement would have been avoided by the use of a subsequent unaltered release of the Material which is provided to the Recipient; or (b) any information, design, specification, instruction, software, data or material not furnished by the Provider.
c. Options. In the event that some or all of the Material is held or is believed by the Provider to infringe, the Provider will have the option, at its expense, (a) to modify the Material to be non-infringing; (b) to obtain for the Recipient a license to continue using the Material; or (c) to require return of the infringing Material and all rights thereto from the Recipient.
NON-SOLICITATION
For the term of this agreement and for a period of two (2) years thereafter, neither party will hire, contract, solicit for hire, or solicit for contract, directly or indirectly, any employee, contractor or supplier of Vaulta who was involved in the performance of work resultant to this proposal.
TIME
All lead times for each stage of the project are estimates only and are subject to reasonable change. Vaulta will not be liable for any loss or damage resulting from such lead times not being met or from changes to delivery schedules resulting from accident or any contingency out of the control of Vaulta.
CANCELLATION
Should the project be postponed or cancelled by the Client, then the Client shall be liable for the fees, costs and expenses up to the completion of that stage of work in relation to which commencement instruction had been provided by the Client.
WARRANTY, EXCLUSIVE REMEDY AND DISCLAIMER
a. Exclusive Warranty. Vaulta will perform the Services in a professional manner conforming to generally accepted industry standards. The Client must report any deficiencies in the Services to Vaulta in writing within 90 days of performance of the Services in order to receive warranty remedies.
b. Disclaimer. Other than the warranty set forth in Section 2(a), and to the extent permitted by law, Vaulta makes no other warranties or representations, express or implied, by operation of law or otherwise, with respect to any Services supplied under this Agreement. Vaulta expressly disclaims any warranty of merchantability or fitness for a particular purpose. To the extent permitted by law, Vaulta expressly limits its liability for breach of a condition or warranty implied into this Agreement by any legislation and which cannot be excluded to the following, the choice of which is at Vaulta’s sole discretion: (1) in the case of goods any one or more of the following (i) the replacement of the goods or the supply of equivalent goods; or (ii) the repair of the goods; or (iii) the payment of the cost of replacing the goods or of acquiring equivalent goods; or (iv) the payment of having the goods repaired; or (2) in the case of services: (i) the supply of the services again; or (ii) the payment of the cost of having the services supplied again.
MANUFACTURE
If Vaulta is required by the Client to invite offers from third parties for the manufacture of the product (including any models or prototypes) or part thereof, Vaulta will act solely as the disclosed agent of the Client and will accept no responsibility for the performance by the manufacturer of its obligations in that connection. The Client specifically discharges and indemnifies Vaulta from any obligation or liability whatsoever in respect of the same.
INTELLECTUAL PROPERTY
Vaulta will own any hardware, firmware, code, reports and other products created by Vaulta for the Client for the purpose of providing the Services. However, the Client will have a royalty-free, non-exclusive right to use any such products that are provided to the Client.
GENERAL PROVISIONS
a. Confidential Information. The parties may provide to one another information that is confidential (“Confidential Information”). Confidential Information will be limited to the terms and pricing under this Agreement and all information clearly identified as confidential. Confidential Information will not include information which: (a) is or becomes a part of the public domain through no act or omission of the other party; (b) was in the other party’s lawful possession prior to the disclosure and had not been obtained by the other party either directly or indirectly from the disclosing party; (c) is lawfully disclosed to the other party by a third party without restriction on disclosure; (d) is independently developed by the other party; or (e) is disclosed by operation of law.
b. Cooperation. The Client acknowledges that the timely provision of and access to office accommodations, facilities, equipment, assistance, cooperation, complete and accurate information and data from its officers, agents and employees, and suitably configured computer products are essential to performance of any Services, and that Vaulta’s ability to complete any Services will be dependent on these items. If the relevant requirements, project plans, schedule, specifications, scope, design, software, hardware, or system environment or architecture are changed by the Client or any other person, Vaulta shall not be responsible for the change unless the Client and Vaulta specifically consent to the change, scheduling and additional charges, if any, in writing. The Client will (i) have all required Vaulta Software loaded in the desired configuration (ii) have technical staff possessing sufficient authority to perform installations, changes to system definitions and (iii) provide a site manager or director who is able to approve any system changes if necessary.
c. Limitation of Liability. To the extent permitted by law, neither party will be liable to the other party for any indirect, special, incidental, or consequential damages or lost profits sustained or incurred in connection with this Agreement, regardless of the form of action or legal or equitable theory and whether or not such damages are foreseeable. Vaulta’s liability for damages hereunder will in no event exceed the amount of fees paid by the Client under the Agreement.
d. Relationship Between the Parties. Vaulta is an independent contractor, and nothing in this Agreement will be construed to create a partnership, joint venture, or agency relationship between the parties.
Force Majeure. If either party is prevented from performing any portion of the Agreement by causes beyond its control, including, without limitation, labour disputes, civil commotion, war, governmental regulations or controls, casualty, inability to obtain materials or services or acts of God, such defaulting party will be excused from performance (except for payment obligations) for the period of the delay and for a reasonable time thereafter.
Dispute Resolution. Any dispute concerning this Contract which cannot be resolved by the parties in good faith will be submitted to arbitration before an Arbitrator agreed upon by the parties, or if the parties cannot agree, an Arbitrator appointed by the President of the Law Society of Queensland, Australia.
Governing Law. This Agreement will be governed by and construed in accordance with the laws of Queensland, Australia, and the parties agree to submit to the personal and exclusive jurisdiction and venue of these courts.
Entire Agreement. This Agreement constitutes the entire agreement between the parties concerning the subject matter hereof and supersedes all prior or contemporaneous proposals or agreements whether oral or written, and all communications between the parties relating to the subject matter of this Agreement.
