B. The Consultant will provide the services to the Customer under the terms of this agreement.
Commencement Date means the mutually agreed date of commencement by the Customer and the Consultant.
Confidential Information means information that is by its nature confidential but does not include:
(a) information already known to the receiving party at the time of disclosure by the other party; or
(b) information in the public domain other than as a result of disclosure by a party in breach of its obligations of confidentiality under this agreement.
Consultancy Services means the services to be performed by the Consultant under this agreement, specified in the Product Description of the service(s) purchased on Our Website.
Force Majeure means an act, omission or circumstance over which the Consultant could not reasonably have exercised control.
Intellectual Property Rights means all present and future rights conferred by statute, common law or equity in or in relation to any copyright, trade marks, designs, patents, circuit layouts, business and domain names, inventions, and other results of intellectual activity in the industrial, commercial, scientific, literary or artistic fields.
Moral Right means:
(a) a right of attribution of authorship;
(b) a right not to have authorship falsely attributed;
(c) a right of integrity of authorship; or
(d) a right of a similar nature,
which is conferred by statute, and which exists or comes to exist anywhere in the world in a deliverable form comprised within this agreement.
Our Website means the website www.leanprototypemachine.com.
2 When contract formed
When you place an order on Our Website, you will receive an acknowledgement e-mail confirming receipt of your order: this email will only be an acknowledgement and will not constitute acceptance of your order. A contract will not be formed until you receive a confirmation e-mail that the goods or services which you ordered have been dispatched to you. Only those goods or services listed in the confirmation e-mail sent at the time of dispatch will be included in the contract formed.
3 Consultant to provide Consultancy Services
The Consultant will perform the Consultancy Services for the Customer in accordance with this agreement.
4 Pricing and details
You acknowledge that errors may occur on Our Website in relation to details, descriptions and prices. If an error is discovered, the Consultant will correct it straight away.
5 Refund policy
Please choose carefully. Refunds are not normally given if you change your mind or make the wrong decision.
This agreement will commence on the Commencement Date and will continue in effect for the period specified in the Product Description of the service(s) purchased on Our Website or until otherwise terminated under this agreement whichever is the earlier.
7 Title and Intellectual Property Rights
(a) The Customer agrees that any works, items, materials or information of whatever nature produced or developed by the Consultant or under the Consultant's direction pursuant to or in the course of providing the Consultancy Services will remain the sole and complete property of the Consultant, whether such property is tangible or is in the nature of industrial and Intellectual Property Rights (including copyright and rights of Confidential Information).
(b) If the Customer has fully complied with this agreement and if the works, items, materials or information referred to in clause 7(a) have been produced by the Consultant as part of the Consultancy Services, the Consultant grants the Customer a non-exclusive and non-transferable licence to use such works, items, materials and information for such purposes as the parties reasonably contemplate at the Commencement Date.
(c) There is no assignment of Intellectual Property Rights by the Consultant to the Customer pursuant to this agreement.
(d) Nothing in this agreement affects the Moral Rights in any works, items, materials or information supplied pursuant to this agreement.
(a) A party will not, without the prior written approval of the other party, disclose the other party's Confidential Information.
(b) A party will not be in breach of clause 8(a) in circumstances where it is legally compelled to disclose the other party's Confidential Information.
(c) Each party will take all reasonable steps to ensure that its employees and agents, and any sub-contractors engaged for the purposes of this agreement, do not make public or disclose the other party's Confidential Information.
(d) Despite any other provision of this clause, a party may disclose the terms of this agreement (other than Confidential Information of a technical nature) to its related companies, solicitors, auditors, insurers and accountants.
(e) This clause will survive the termination of this agreement.
(a) The Consultant will not use or disclose any personal information for a purpose other than discharging its obligations under this agreement. The Consultant further agrees to comply at all times with the Australian Privacy Principles contained in schedule 1 to the Privacy Act 1988 (Cth) (or an applicable privacy code approved by the Commissioner pursuant to that Act) in the same way and to the same extent as the Customer would have been required to comply had it been directly responsible for performing the act or practice concerned. The Consultant will take all necessary steps to protect personal information in its possession against misuse or loss and it will return all such information to the Customer (or if requested by the Customer, destroy or de-identify such information) upon termination or expiry of this agreement. This clause will survive the termination or expiry of this agreement.
(b) The Customer warrants that the disclosure of personal information to the Consultant for the purposes of this agreement, and the collection of such information by the Consultant, will not contravene the Australian Privacy Principles.
(c) For the purpose of this clause, personal information means information or an opinion about an individual as defined in schedule 6 of the Privacy Act 1988 (Cth) which is collected, used, disclosed, stored or handled by a party for the purposes of this agreement.
10 Liability of Consultant
Except in relation to liability for personal injury (including sickness and death), property damage or an infringement of confidentiality or Intellectual Property Rights, and subject to any non-excludable statutory liability, the liability of the Consultant in damages in respect of any act or omission of the Consultant in connection with its obligations under this agreement will not exceed the amount (if any) of $5,000 (Australian Dollars), even if the Consultant has been advised by the Customer as to the possibility of such losses being incurred.
11 Implied terms and consumer guarantees
(a) Subject to clause 11(b), any condition or warranty which would otherwise be implied in this agreement is excluded.
(b) Liability of the Consultant for breach of a guarantee conferred by the Australian Consumer Law (other than those conferred by sections 51 to 53 of the Australian Consumer Law) is limited:
(i) in the case of goods, to any one of the following as determined by the Consultant:
(A) the replacement of the goods or the supply of equivalent goods;
(B) the repair of the goods;
(C) the payment of the cost of replacing the goods or of acquiring equivalent goods; or
(D) the payment of the cost of having the goods repaired; and
(ii) in the case of services, to any one of the following as determined by the Consultant:
(A) the supplying of the services again; or
(B) the payment of the cost of having the services supplied again.
12 Warranty disclaimer
To the extent permitted by law, any condition or warranty which would otherwise be implied into these terms and conditions is hereby excluded.
13 Force Majeure
(a) The Consultant will not be liable for any delay or failure to perform its obligations if such failure or delay is due to Force Majeure.
(b) The Consultant will notify the Customer as soon as practical be of any anticipated delay due to Force Majeure. The performance of the Consultant's obligations under this agreement will be suspended for the period of the delay due to Force Majeure.
(c) If a delay due to Force Majeure exceeds 14 days, the Customer may terminate this agreement immediately on providing notice to the Consultant. If the Customer gives such notice to the Consultant:
(i) the Consultant will refund moneys previously paid by the Customer under this agreement for which no services have been provided; and
(ii) the Customer will pay the Consultant a reasonable sum in relation to services rendered or costs and expenses incurred prior to termination for which no payment has been made by the Customer.
(a) Without limiting the generality of any other clause in the agreement, the Consultant may terminate this agreement and any licence granted pursuant to this agreement immediately by notice in writing if:
(i) the Customer breaches any clause of this agreement and such breach is not remedied within 14 days of written notice by the Consultant.
(b) Despite the preceding clause the Consultant may terminate this agreement and any licence granted pursuant to this agreement immediately on notice in writing to the Customer if:
(i) the Customer becomes, threatens or resolves to become or is in jeopardy of becoming subject to any form of insolvency administration;
(ii) the Customer, being a partnership, dissolves, threatens or resolves to dissolve or is in jeopardy of dissolving;
(iii) the Customer, being a natural person, dies; or
(iv) the Customer ceases or threatens to cease conducting its business in the normal matter.
(c) Despite the preceding paragraphs, the Consultant may terminate this agreement by giving 14 days' notice to the Customer.
(d) If notice is given to Customer pursuant to the preceding clauses, the Consultant may, in addition to terminating the agreement:
(i) retain a reasonable sum for work performed;
(ii) retake possession of all property of the Consultant in the possession of the Customer;
(iii) be regarded as discharged from any further obligations under this agreement; and
(iv) pursue any additional or alternative remedies provided by law.
(e) The Customer may terminate this agreement if the Consultant breaches any term of this agreement and such breach is not remedied within 14 days of written notice by the Customer.
(f) Nothing in this clause affects the right of the terminating party to pursue any other remedy available to it at law arising out of the terminating event, subject where applicable to any cap on, or exclusion of, liability set out in this agreement.
Neither party will assign, whether in whole or part, the benefit of this agreement or any rights or obligations under this agreement, without the prior written consent of the other party.
The Consultant may subcontract for the performance of this agreement or any part of this agreement without the prior consent of the Customer.
No forbearance, delay or indulgence by a party in enforcing the provisions of this agreement will prejudice or restrict the rights of that party, nor will any waiver of those rights operate as a waiver of any subsequent breach.
18 Variation and change control
(a) The provisions of this agreement may not be varied except by agreement in writing signed by both parties.
(b) If a proposed variation relates to the scope of this agreement (including but not limited to specifications, performance levels, key dates or charges), the proposing party must include in its submission a change control report which addresses in full detail:
(i) a description of the proposed change;
(ii) an assessment of the benefits and risks to each party associated with the proposed change;
(iii) a timeframe for the proposed implementation;
(iv) a description of any disruption which may result from the change;
(v) any consequential changes which may be required; and
(vi) such other matters as agreed by both parties in relation to change control.
19 Entire agreement
This agreement supersedes all prior agreements, arrangements and undertakings between the parties and constitutes the entire agreement between the parties relating to the Consultancy Services. No addition to or modification of any provision of this agreement will be binding upon the parties unless made by written instrument signed by a duly authorised representative of both parties.
Headings used in this agreement are for convenience and ease of reference only, are not part of this agreement and will not be relevant to or affect the meaning or interpretation of this agreement.
Should any part of this agreement be or become invalid, that part will be severed from this agreement. Such invalidity will not affect the validity of the remaining provisions of the agreement.
All notices which are required to be given under this agreement must be in writing and must be sent to the email address of the recipient, as specified on Our Website, provided by you when you purchased our services or such other address as the recipient may designate by notice given in accordance with this clause. Any such notice will be deemed to have been served, when the email enters the recipient's mail server.
(a) The parties shall endeavour to settle any dispute arising out of or relating to this agreement, including with regard to its existence, validity or termination, by mediation administered by the NSW Small Business Commission (Commercial Mediation Service) before having recourse to arbitration or litigation.
(b) This clause shall survive termination of this agreement.
24 No Legal Advice
The Consultancy Services may provide information concerning potential legal issues, but it is not a substitute for legal advice from a qualified lawyer. At no time does the Consultant review information for legal sufficiency, draw legal conclusions, provide legal advice, opinions or recommendations about anyone’s legal rights, remedies, defenses, options, selection of forms, or strategies. Use of the Consultancy Services does not create any fiduciary relationship between You and the Consultant. The accuracy of the Consultancy Services is neither warranted nor guaranteed and You use the Consultancy Services at your own risk. Documents and outputs created using the Consultancy Services may require consultation with a lawyer prior to execution or filing.
25 Governing law
This agreement will be governed by and construed in accordance with the laws for the time being in force in New South Wales, Australia and the parties agree to submit to the jurisdiction of the courts and tribunals of that state.