1. ACCEPTANCE
1.1 This Agreement is between Xen Systems Pty Ltd (ABN 86 122 214 091), its successors and assignees (referred to as “we”, “us” and “our”) and you, the person, organisation or entity described in the Proposal (referred to as “you” and “your”), each a “Party” and collectively the “Parties”. This Agreement applies to the supply of the Services provided by us to you.
1.2 You have requested that we provide you with the Services as described in the Proposal and/or further particularised in the Statement of Work, on the terms and conditions set out in this Agreement.
1.3 You accept this Agreement by the earlier of:
(a) signing and returning this Agreement, including via DocuSign, HubSpot, Qwilr, Proposify or other electronic executions platform acceptable to us;
(b) confirming by email that you accept this Agreement;
(c) confirming via the platforms or applications through which we provide this Agreement to you, including Qwilr (Platform);
(d) instructing us (whether orally or in writing) to proceed with supplying you the Services; and
(e) making part or full payment of the Fees.
1.4 This Agreement will commence on the Commencement Date and will continue until terminated in accordance with its terms.
2. STATEMENT OF WORK
2.1 This Agreement constitutes a “standing offer” under which, during the Term, the Parties may agree to the Services being provided pursuant to separate Statements of Work.
2.2 We will only be bound to comply with a Statement of Work, and to perform any Services pursuant to a Statement of Work, if we have agreed to the terms of the relevant Statement of Work in writing.
2.3 Each Statement of Work will incorporate, is subject to, and will be governed by, this Agreement and any other conditions agreed to by the Parties.
3. SERVICES
3.1 In consideration for the Fees, we will provide the Services to you in accordance with this Agreement and/or any relevant Statement of Work.
3.2 We may perform the Services ourselves or through our employees, contractors and third party service providers.
3.3 You acknowledge and agree that:
(a) any information, advice, material, work and services (including the Services and Deliverables) provided by us under this Agreement does not constitute legal, financial, merger, due diligence or risk management advice; and
(b) the Services are confidential, and provided to you for your commercial use only, and should not be provided to, or relied upon by, any other person or entity without our prior written consent.
4. VARIATIONS
4.1 The Fee and the Services can be varied by written agreement between the Parties, including by email (Variation).
4.2 If you request a Variation to the Services, we have discretion as to whether we accept the Variation. If we accept the Variation, we will inform you of any changes to the Fee that will apply (Variation Fee). If you agree to the Variation Fee, we will invoice you for the Variation, and you must pay the Variation Fee in full before we are obliged to commence performing the Services the subject of the Variation.
4.3 Without limiting and in addition to clause 4.1, where:
(a) the Services are varied or changed, or the cost of providing the Services increases; and
(b) the cause of that variation, change or increase relates to, or is connected with, an event or circumstance beyond our reasonable control,
you must pay us the additional costs and expenses we suffer or incur as a debt due and immediately payable to us.
5. THIRD PARTIES
5.1 You acknowledge and agree that:
(a) the provision of the Services may be contingent on, or impacted by, third parties, including customers, end users, suppliers, transportation or logistics providers or other subcontractors (Third Party Inputs); and
(b) despite anything to the contrary, to the maximum extent permitted by law, we will not be responsible, and will have no Liability, for any default or breach of this Agreement or law, if such default or breach was caused or contributed to by any Third Party Inputs.
5.2 This clause 5 will survive the termination or expiry of this Agreement.
6. OMISSIONS
6.1 If there is a problem with any part of the Services which is caused by our breach of this Agreement or any relevant Statement of Work (Omission), and you have notified us of the Omission in writing within 7 days after completion or delivery of the relevant part of the Services, then, to the maximum extent permitted by law, our Liability arising from, or in connection with, the Omission will be limited to us remedying the Omission, or, at our absolute discretion, us refunding to you that portion of the Fee paid by you with respect to the Omission.
6.2 This clause 6 will survive the termination or expiry of this Agreement.
7. FEE, INVOICING AND PAYMENT
7.1 You agree to pay us the Fees in accordance with the Payment Terms set out in the relevant Statement of Work.
7.2 All amounts are stated in Australian dollars and are exclusive of GST (unless indicated otherwise in our invoice).
7.3 In addition to the Fees, you agree to reimburse us (at cost) for all expenses reasonably incurred by us in providing the Services to you including, but not limited to, disbursements, travel costs and accommodation charges. This clause 7.3 will survive termination or expiry of this Agreement.
7.4 If an amount payable by you to us under this Agreement is unpaid after the date for payment set out in this Agreement, we may cease to provide the Services to you until we receive payment.
7.5 If invoices are unpaid after the date for payment set out in this Agreement, we have the right to engage debt collection services for the collection of unpaid and undisputed debts, and the right to commence legal proceedings for any outstanding amounts owed to us.
7.6 We reserve the right to report bad debts to independent credit data agencies.
7.7 If the Statement of Work states that the Fee is an estimate only, you acknowledge that the final Fee may be more or less than the estimated amounts. We will endeavour to inform you of any material variation as it becomes apparent.
8. YOUR OBLIGATIONS AND WARRANTIES
You warrant and agree that:
(a) there are no legal restrictions preventing you from agreeing to this Agreement;
(b) you will cooperate with us and provide us with all assistance, resources, data, people, information, facilities, access and documentation that is reasonably necessary to enable us to perform the Services, and as otherwise requested by us, from time to time, and in a timely manner;
(c) you will make any changes to your current systems, software and hardware that may be required to support the delivery and operation of any Services or Deliverables;
(d) all information and documentation that you provide to us in connection with this Agreement is true, correct and complete and you acknowledge and agree that we will rely on such information and documentation in order to provide the Services;
(e) you have read and reviewed all commentary or information that we have provided to you in relation to our engagement and the Services prior to entering into this Agreement, and you have not relied on any representations made by us in relation to the Services (including as to whether the Services are or will be fit or suitable for your particular purposes);
(f) you will inform us if you have reasonable concerns relating to our provision of Services under this Agreement, with the aim that the Parties will use all reasonable efforts to resolve your concerns;
(g) the Services are provided to you solely for your benefit and you will not (or you will not attempt to) disclose, or provide access to, our Services to third parties without our written consent;
(h) you are responsible for obtaining any consents, licences, authorities and permissions from other parties necessary for the Services to be provided in accordance with this Agreement, at your cost, and for providing us with the necessary consents, licences, authorities and permissions;
(i) you will grant us such rights of access to your data, systems, processes and environments as is necessary to enable us to perform the Services;
(j) you will have all equipment and software necessary to protect from external attack to the security and integrity of your communications or computer systems and/or network;
(k) you will prevent the unauthorised access to any Deliverables;
(l) you will maintain the confidentiality and security of any of your account details or passwords;
(m) you will be responsible for all use of the Services and you must ensure that no person uses any part of the Services:
(1) to break any law or infringe any person's rights;
(2) to transmit, publish or communicate material that is defamatory, offensive, abusive, indecent, menacing or unwanted; or
(3) in any way that damages, interferes with or interrupts the supply of the Services,
(n) if applicable, you hold a valid ABN which has been advised to us; and
(o) if applicable, you are registered for GST purposes.
9. OUR INTELLECTUAL PROPERTY
9.1 The work, models, processes, technologies, strategies, materials and services that we provide to you in supplying the Services (including the Deliverables) contains material which is owned by or licensed to us and is protected by Australian and international laws (Materials).
9.2 You agree that, as between the Parties, we own all Intellectual Property rights in our Materials, and that nothing in this Agreement constitutes a transfer or assignment of any Intellectual Property ownership rights in our Materials.
9.3 You must not breach our copyright or Intellectual Property rights by, including but not limited to:
(a) altering or modifying any of the Materials;
(b) creating derivative works from the Materials;
(c) providing or disclosing the Materials to, or allowing our Materials to be used by, any third party; or
(d) using our Materials for purposes other than as expressly stated in this Agreement (including, without limitation, using our Materials for commercial purposes or on-selling the Materials to third parties),
without our prior written consent.
9.4 We grant you a perpetual, non-exclusive, irrevocable, worldwide and non-transferable right and licence to use the Materials, and solely for the purposes for which they were developed as contemplated by this Agreement.
9.5 This clause 9 will survive the termination of this Agreement.
10. YOUR INTELLECTUAL PROPERTY
10.1 You agree to provide information and documentation, including any Intellectual Property, to us, to enable us to provide the Services. You:
(a) grant us a non-exclusive, royalty-free, worldwide licence for the duration of the Term to use the Intellectual Property in any way we require to provide the Services to you; and
(b) consent to any act or omission which would otherwise constitute an infringement of your moral rights.
10.2 If you (or any of your employees or agents) have moral rights in any Intellectual Property that you provide to us, you:
(a) irrevocably consent to any amendment of the Intellectual Property, in any manner, by us for the purposes of providing Services to you;
(b) irrevocably consent to us using or applying the Intellectual Property for the purposes of providing Services to you without any attribution of authorship;
(c) agree that your consent extends to acts and omissions of any of our licensees and successors in title; and
(d) agree that your consent is a genuine consent under the Copyright Act 1968 (Cth) and has not been induced by duress or any false or misleading statements.
10.3 This clause 10 will survive the termination of this Agreement.
11. CONFIDENTIAL INFORMATION
11.1 We, including our employees and contractors, agree not to disclose your Confidential Information to any third party; to use all reasonable endeavours to protect your Confidential Information from any unauthorised disclosure; and to only use your Confidential Information for the purpose for which it was disclosed or provided by you to us, and not for any other purpose.
11.2 You, including your employees and contractors, agree not to disclose our Confidential Information to any third party; to use all reasonable endeavours to protect our Confidential Information from any unauthorised disclosure; and to only use our Confidential Information for the purpose for which it was disclosed or provided by us to you, and not for any other purpose.
11.3 These obligations do not apply to Confidential Information that:
(a) is required to be disclosed in order for the Parties to comply with their obligations under this Agreement;
(b) is authorised to be disclosed;
(c) is in the public domain and/or is no longer confidential, except as a result of a breach of this Agreement; or
(d) must be disclosed by law or by a regulatory authority including under subpoena.
11.4 This clause 11 will survive the termination of this Agreement.
12. FEEDBACK AND DISPUTE RESOLUTION
12.1 Your feedback is important to us. We seek to resolve your concerns quickly and effectively. If you have any feedback or questions about the Services, please contact us.
12.2 If there is a dispute between the Parties in relation to this Agreement, the Parties agree to the following dispute resolution procedure:
(a) The complainant must tell the respondent in writing, the nature of the dispute, what outcome the complainant wants and what action the complainant thinks will settle the dispute. The Parties agree to meet in good faith to seek to resolve the dispute by agreement between them at an initial meeting.
(b) If the Parties cannot agree how to resolve the dispute at that initial meeting, any Party may refer the matter to a mediator. If the Parties cannot agree on who the mediator should be, the complainant will ask the Law Society of New South Wales to appoint a mediator. The mediator will decide the time and place for mediation. The Parties must attend the mediation in good faith, to seek to resolve the dispute. The costs of the mediation will be shared equally between the Parties.
12.3 Any attempts made by the Parties to resolve a dispute pursuant to this clause 12 are without prejudice to other rights or entitlements of the Parties under this Agreement, by law or in equity.
13. TERM AND TERMINATION
13.1 This Agreement will apply from the date of acceptance of the Proposal (in accordance with this Agreement) and continue for the Term, unless earlier terminated in accordance with this clause 13.
13.2 Either Party may terminate this Agreement at any time by giving the other Party 30 days’ notice in writing.
13.3 We may terminate this Agreement immediately, at our sole discretion, if:
(a) you commit a breach of this Agreement;
(b) you fail to provide us with clear or timely instructions or information to enable us to provide the Services;
(c) we consider that our working relationship has broken down including a loss of confidence and trust;
(d) for any other reason outside our control which has the effect of compromising our ability to perform the Services; and/ or
(e) you fail to pay the Fee or any amounts due in accordance with this Agreement within the time for payment specified in the Payment Terms.
13.4 On termination of this Agreement:
(a) we will cease performing the Services;
(b) you agree that any payments made by you to us are not refundable to you, and you are to pay for all Services provided prior to termination, including Services which have been performed and have not yet been invoiced to you, and all other amounts due and payable under this Agreement;
(c) we will cease using and operating your social media platforms and/or digital marketing tools and, subject to such accounts being updated to reflect your details (including any automatic payments), we will transfer the accounts to you; and
(d) you agree to promptly return (where possible), or delete or destroy (where not possible to return), our Confidential Information, Materials and Intellectual Property, and/or documents containing or relating to our Confidential Information, Materials and/or Intellectual Property.
13.5 Unless otherwise agreed between the Parties, if this Agreement is terminated in accordance with clause 13.2, then any current Statement of Work will also terminate on the date of termination.
13.6 On completion of the Services, we will retain your documents (including copies) as required by law or regulatory requirements. Your express or implied agreement to this Agreement constitutes your authority for us to retain or destroy documents in accordance with the statutory periods, or on termination of this Agreement.
13.7 The accrued rights, obligations and remedies of the Parties are not affected by the termination of this Agreement.
14. LIMITATION OF LIABILITY AND DISCLAIMERS
14.1 ACL: Certain legislation including the Australian Consumer Law (ACL) in the Consumer and Competition Act 2010 (Cth), and similar consumer protection laws and regulations may confer you with rights, warranties, guarantees and remedies relating to the provision of Services by us to you which cannot be excluded, restricted or modified (Statutory Rights). Nothing in this Agreement excludes your Statutory Rights as a consumer (if applicable) under the ACL. You agree that our Liability for Services provided to an entity defined as a consumer under the ACL is governed solely by the ACL and this Agreement. We exclude all conditions and warranties implied by custom, law or statute except for your Statutory Rights.
14.2 Warranties: Subject to your Statutory Rights, we exclude all express and implied warranties, and all material, work and services (including the Services) is provided to you without warranties of any kind, either express or implied, whether in statute, at law or on any other basis.
14.3 Delay: You acknowledge and agree that, where this Agreement requires any of our obligations, or any part of the Services, to be performed by a certain date or within a certain period, you acknowledge and agree that such date or period is an estimate only, and that we will not be in breach of this Agreement if we fail to perform our obligations, or any part of the Services, by such date or within such period.
14.4 Liability: To the maximum extent permitted by law, our liability for any Liability in relation to the Services or this Agreement (whether under statute, contract, negligence or other tort, indemnity, or otherwise) will be limited to us resupplying the Services to you or, in our sole discretion, to us repaying you the amount of the Fee paid by you to us in respect of the supply of the relevant Services to which the Liability relates.
14.5 Exclusions: To the maximum extent permitted by law, we will not be liable for, and you waive and release us from and against, any Liability (whether under statute, contract, negligence or other tort, indemnity, or otherwise) caused or contributed to by (whether directly or indirectly):
(a) any of your acts or omissions (including your breach of this Agreement) or any acts or omissions of any third party;
(b) any use or application of the Services by a person or entity other than you, or other than as anticipated by this Agreement;
(c) any works, services, goods, materials or items which do not form part of the Services, as expressed in this Agreement or any Statement of Work;
(d) the Services being unavailable, or any delay in us providing the Services to you, for whatever reason;
(e) any event outside of our reasonable control;
(f) any negative effects to or loss of, search engine rankings or traffic to your website; and/or
(g) any Consequential Loss.
14.6 Indemnity: You are liable for, and agree to indemnify, defend and hold us harmless for and against, any and all Liability caused or contributed to by
(a) any of your negligent or wrongful acts or omissions, or any breach of this Agreement by you;
(b) any use or application of the Services by a person or entity other than you, or other than as anticipated by this Agreement;
(c) your failure to update social media and digital marketing account details on expiry or termination of this Agreement in accordance with clause 13.4(c); and
(d) any infringement by you (or any of your Personnel) of any third party rights (including any third party Intellectual Property rights).
14.7 This clause 14 will survive termination of this Agreement.
15. GENERAL
15.1 Publicity: You agree that we may advertise or publicise the broad nature of the Services we provide to you, including on our website or in our promotional material, unless otherwise advised by you to the contrary in writing to us.
15.2 Privacy: We agree to comply with the legal requirements of the Australian Privacy Principles as set out in the Privacy Act 1988 (Cth) and any other applicable legislation or privacy guidelines.
15.3 Email: You acknowledge that we are able to send electronic mail to you and receive electronic mail from you. You release us from any claim you may have as a result of any unauthorised copying, recording, reading or interference with that document or information after transmission, for any delay or non-delivery of any document or information and for any damage caused to your system or any files by a transfer.
15.4 GST: If and when applicable, GST payable on the Fee for the Services will be set out on our invoices. You agree to pay the GST amount at the same time as you pay the Fee.
15.5 Non-Exclusive: Our engagement under this Agreement is non-exclusive and we are entitled to accept engagements from other parties to perform services which are similar to, or the same as, the Services.
15.6 Assignment: This Agreement is personal to the Parties. A Party must not assign or deal with the whole or any part of its rights or obligations under this Agreement without the prior written consent of the other Party (such consent not to be unreasonably withheld).
15.7 Severance: If any provision (or part of it) under this Agreement is held to be unenforceable or invalid in any jurisdiction, then it will be interpreted as narrowly as necessary to allow it to be enforceable or valid. If a provision (or part of it) under this Agreement cannot be interpreted as narrowly as necessary to allow it to be enforceable or valid, then the provision (or part of it) must be severed from this Agreement and the remaining provisions (and remaining part of the provision) of this Agreement will be valid and enforceable.
15.8 Force Majeure: We will not be liable for any delay or failure to perform our obligations under this Agreement if such delay is due to any circumstance beyond our reasonable control.
15.9 Notices: Any notice required or permitted to be given by either Party to the other under this Agreement will be in writing addressed to the relevant address in the Proposal. Any notice may be sent by standard post or email, and notices will be deemed to have been served on the expiry of 48 hours in the case of post, or at the time of transmission in the case of transmission by email.
15.10 Jurisdiction & Applicable Law: This Agreement is governed by the laws of New South Wales and the Commonwealth of Australia. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in New South Wales.
15.11 Entire Agreement: This Agreement, any Statement of Work and any document expressly referred to in it represents the entire agreement between the Parties and supersedes any prior agreement, understanding or arrangement between the Parties, whether oral or in writing.
16. DEFINITIONS
16.1 Agreement means the Proposal, these terms and conditions, and any documents attached to, or referred to in, each of them.
16.2 Commencement Date means the date this Agreement is accepted in accordance with its terms.
16.3 Confidential Information means all Materials, information, documentation or other materials (in any format) provided to, discovered or licensed by, or otherwise related to this Agreement, us and/or the subject matter of this Agreement.
16.4 Consequential Loss includes any indirect, incidental or consequential loss, damage or costs, including legal costs, loss of profits, revenue, production, opportunity, access to markets, goodwill, reputation, use or any remote, abnormal or unforeseeable loss, or any loss or damage relating to business interruption, or otherwise, suffered or incurred by a person, arising out of or in connection with this Agreement (whether involving a third party or a Party to this Agreement or otherwise).
16.5 Deliverables means any deliverable, outcome, product or result that we will provide to you through the supply of the Services, as particularised in the Statement of Work.
16.6 Fee means the amount particularised in the Statement of Work, as adjusted in accordance with this Agreement.
16.7 GST means GST as defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) as amended from time to time or any replacement or other relevant legislation and regulations.
16.8 Intellectual Property includes any and all present and future rights to intellectual and industrial property throughout the world, and includes all copyright and analogous rights, all rights in relation to registered and unregistered trademarks, designs, any corresponding property rights under the laws of any jurisdiction, coaching materials, video recordings, discoveries, trade names, trade secrets, secret processes, know-how, concepts, ideas, information, processes, business names, company names or internet domain names, and any Confidential Information and moral rights.
16.9 Liability means any expense, cost, liability, loss, damage, claim, notice, entitlement, investigation, demand, proceeding or judgment (whether under statute, contract, equity, tort (including negligence), indemnity or otherwise), howsoever arising, whether direct or indirect and/or whether present, unascertained, future or contingent and whether involving a third party or a Party to this Agreement or otherwise.
16.10 Payment Terms are as particularised in the Statement of Work and in our invoices.
16.11 Platform has the meaning given in clause 1.3(c).
16.12 Proposal means the proposal provided by us to you, including via our Platform.
16.13 Services means the services to be provided by us to you under this Agreement, a brief description of which is provided in the Proposal, and which are fully particularised in the Statement of Work (and, where applicable, includes any Deliverables).
16.14 Statement of Work means any statement of work issued pursuant to this Agreement, the form of which is provided as part of a quote, proposal or attachment to email correspondence.
16.15 Term means the period from the Start Date up to the Estimated End Date.
16.16 Variation has the meaning given in clause 4.1.
16.17 Variation Fee has the meaning given in clause 4.2.