1.1 These Standard Terms and Conditions apply to the provision of Services and Deliverables in all circumstances except where Fabric has entered into a Formal Agreement with a customer. Where a Formal Agreement has been entered into, the terms of that Formal Agreement will apply to the exclusion of these Standard Terms and Conditions and all other terms and conditions. In circumstances where there is no Formal Agreement, these Standard Terms and Conditions will be deemed to be incorporated into the relevant Statement of Work which will form the agreement between Fabric and the Customer in relation to the work described in that Statement of Work.
1.2 Fabric will perform the Services and supply any Deliverables in accordance with the relevant Statement of Work using all reasonable skill and care, including by performing and providing all the things in the Statement of Work that Fabric is required to perform and provide. Except as otherwise stated in the Statement of Work, any timetable in the Statement of Work is an estimate only.
1.3 The Customer must provide to Fabric any information and assistance which Fabric may reasonably require in order for Fabric to perform its obligations and, in particular (but without limitation), the Customer must do all those things which the Statement of Work indicates that the Customer will do.
1.4 Fabric acknowledges that: (i) the Agreement fully describes the extent of the Fabric's obligations in relation to the Customer and (ii) except as described in the Statement of Work, to the extent that Fabric's performance is dependant on the Customer or any third party (other than a party contracted to Fabric) it is the Customer's responsibility to ensure that such third party performs its obligations so that Fabric is able to provide the Services and Deliverables. This does not apply to ancillary and incidental functions which are necessary for performance of the relevant Services or provision of the Deliverables which are Fabric's responsibility.
1.5 If the parties agree in writing in a Statement of Work that Fabric must provide new Services or Deliverables to the Customer, the Statement of Work must be varied to incorporate the new Services and/or Deliverables, and these Standard Terms and Conditions will apply (unless other terms are agreed) to the Services and Deliverables provided by Fabric under that varied Statement of Work.
2.1 Fabric will invoice the Customer in respect of the Fees (and any applicable GST) in accordance with any dates for invoicing specified in the Statement of Work or if the Statement of Work does not specify an invoicing or payment date, at the end of each calendar month for the work carried out in that month.
2.2 The Customer must pay Fabric the Fees as set out in the Statement of Work no later than 30 days after the date that the Customer receives Fabric's invoice in respect of the relevant fee, unless otherwise specified in the Statement of Work. Any amount which remains outstanding after 30 days may be subject to an interest charge from that date calculated at the lower of the Reserve Bank of Australia cash rate target per annum plus 2% and 9% per annum.
2.3 Unless otherwise expressly stated in the Statement of Work, the Fees and any other amounts referred to in the Statement of Work are expressed exclusive of GST. If GST is payable as a consequence of any supply made (or deemed to be made) by Fabric, the Customer will pay Fabric an amount equal to the GST payable in respect of the supply, in addition to the amounts otherwise payable, subject to and on condition that Fabric provides a valid tax invoice as a precondition for payment by the Customer of GST.
3.1 The Customer must provide Fabric's personnel with such access to the location as specified in the Statement of Work, as Fabric may reasonably request in order to provide the Services and Deliverables.
3.2 Fabric must ensure that Fabric's personnel, when at the location, comply with all applicable health and safety policies and requirement and all reasonable directions which the Customer or the applicable third party may reasonably give to Fabric and do not interfere with the operation of the Customer's business to the extent reasonably possible.
4.1 Unless otherwise agreed between the parties in the Statement of Work, Fabric will retain all Intellectual Property Rights in and to the Deliverables and, on the payment for the Deliverables or Services in full by the Customer, grants to the Customer a perpetual, royalty-free, non-exclusive licence to use the Intellectual Property Rights in the Deliverables for the purposes associated with the operation of its business except for Fabric's tools and methodologies which, whilst used in the process of producing the Deliverables, are not necessary for their on-going use. Such tools and methodologies remain owned by Fabric and are not licensed to the Customer.
4.2 Nothing in this Agreement affects the ownership of Intellectual Property Rights which are owned by a party prior to the date of, or developed independently of, this Agreement including all modifications, adaptations and extensions of such rights regardless whether created in the course of performance of this Agreement or not. All such rights remain vested in the party owning such rights.
4.3 Subject to clause 4.2, Intellectual Property Rights created by Fabric in the performance of this Agreement will vest in the Customer and Fabric assigns all such Intellectual Property Rights to the Customer on payment in full for the Deliverables to which they relate.
4.4 In relation to Intellectual Property Rights owned by Fabric and comprised in the Deliverables, Fabric grants to the Customer a perpetual, royalty-free, non-exclusive licence to use the Intellectual Property Rights in the Deliverables for the purposes of its business. This licence does not include Fabric's tools and methodologies which, whilst they may be used in the process of producing the Deliverables, are not necessary for their on-going use. Such tools and methodologies remain owned by Fabric and are not licensed to the Customer.
4.5 In relation to Intellectual Property Rights assigned to the Customer by Fabric under this clause, the Customer grants to Fabric a worldwide, transferable, perpetual, irrevocable and royalty free licence (including the right to grant sublicences to third parties) to use, modify, adapt, enhance and otherwise commercialise such Intellectual Property Rights.
5.1 The following provisions apply unless a separate non-disclosure agreement or a Formal Agreement which contains provisions dealing with the maintenance of the confidentiality of Confidential Information has been entered into between Fabric and the Customer.
5.2 Subject to applicable laws, each party will maintain the confidentiality of any Confidential Information disclosed to it by the other party and will not disclose that Confidential Information to any person except as permitted under this clause.
5.3 The recipient of Confidential Information may disclose Confidential Information with the prior written consent of the disclosing party to its officers, employees, contractors and agents as may be reasonably required pursuant to these Standard Terms and Conditions and the relevant Statement of Work and to its advisers for the purposes of seeking professional advice.
5.4 The recipient of another party's Confidential Information may disclose such information where required by law or order of a Court to do so provided it notified the disclosing party and takes all reasonable steps to limit the disclosure to the maximum extent possible. Such disclosure does not relieve the recipient of the obligation to treat the Confidential Information as confidential under this clause except to the extent of the disclosure required by law or Court order.
5.5 The provisions of this clause 5 do not apply to information that the recipient can demonstrate is in the public domain (other than as a consequence of a breach of this clause) or which was already in the possession of the recipient before it was received by the recipient from the discloser without any obligation to keep it confidential.
5.6 Where Personal Information (as defined in the Privacy Act 1988 (Cth)) is provided to, held or is accessed by a party pursuant to or as a consequence of the entering into of a Statement of Work, the recipient agrees to observe and comply with its obligations with respect to that Personal Information under the Privacy Act and any other relevant law or regulation applicable to that Personal Information.
6.1 To the extent permitted by law, Fabric's total cumulative liability under, or in relation to, this Agreement will not exceed, in the aggregate, the total amount of Fees actually paid to Fabric in connection with that Statement of Work.
6.2 Without limiting clause 6.1, and to the extent permitted by law, the Customer agrees that Fabric is not liable for any loss of profit, revenue, data, contracts, goodwill or business, any interruption to the Customer's business, any failure to realise savings, or any consequential, indirect, special, punitive or incidental damages.
6.3 The Customer acknowledges and agrees that the limitation of liability in clause 6.1 and the exclusion of liability in clause 6.2 apply to any liability of Fabric to the Customer, whether that liability arises out of breach of contract, negligence or any other tort, under statute, or otherwise (including repudiation).
6.4 The Customer agrees not to permit any of its related body corporates (as defined in the Corporations Act 2001 (Cth)) to take action against Fabric directly provided that any loss suffered by any of the Customer's related body corporates as a consequence of a proven breach by Fabric of this Agreement or negligence of Fabric will be deemed to be a loss of the Customer recoverable subject to the terms of this Agreement.
6.5 To the extent permitted by law, Fabric excludes any warranties other than those expressly included in this Agreement or, in relation to warranties implied by law, cannot be excluded and in relation to such implied warranties, notwithstanding any other provision of this Agreement, to the extent to which Fabric is entitled to do so, Fabric limits its liability in respect of any claim for any breach of such warranties to: in the case of goods, at Fabric's option: (i) the replacement of the goods or the supply of equivalent goods; (ii) the repair of such goods; (iii) the payment of the cost of replacing the goods or of acquiring equivalent goods; or (iv) the payment of having the goods repaired, and in the case of services, at Fabric's option: (i) the supply of the services again; or (ii) the payment of the cost of having the services supplied again.
7.1 Either party may terminate this Agreement at any time upon providing the other party with 30 days written notice.
7.2 If this Agreement is terminated for any reason, the Customer will be liable for any accrued or unpaid Fees to the date of termination.
7.3 Termination of this Agreement for any reason will not prejudice any other rights which may have accrued to either party prior to the date of termination.
8.1 This Agreement is the entire agreement of the parties about the subject matter of this Agreement and supersedes all other representations, negotiations, arrangements, understandings or agreements and all other communications.
8.2 If a provision of this Agreement is invalid or unenforceable in a jurisdiction it is to be read down or severed in that jurisdiction to the extent of the invalidity or unenforceability and that fact does not affect the validity or enforceability of the remaining provisions.
8.3 This Agreement may be amended only by a document signed by both parties.
8.4 This Agreement is governed by the laws of the State of Victoria and each party submits to the non-exclusive jurisdiction of the courts of that State and waives any claim or objection based on absence of jurisdiction or inconvenient forum.
8.5 A party must not transfer, assign, create an interest in or deal in any other way with any of its rights under this Agreement without the express prior written consent of the other party.
"Agreement" means the contract between the Customer and Fabric which is comprised of and governed by, the Statement of Work and these Standard Terms and Conditions.
"Deliverables" means anything the Statement of Work indicates Fabric will deliver to you in the course of providing the Services.
"Confidential Information" means information in whatever form concerning the business affairs, customers, finances, and business or management strategies of a party and any information in whatever form which is either marked as confidential or which the disclosing party indicates is confidential at the time of disclosure or which the recipient of that information ought reasonably to know is confidential having regard to the nature of that information and the circumstances of its disclosure.
"Customer" means the purchaser of Fabric's Services as set out in the Statement of Work.
"Fabric" means Fabric Group Holdings Pty Ltd (ABN 68 125 520 452).
"Fees" means the fees payable by the Customer to Fabric for Services, charged on either a time, fixed fee or retainer basis as specified in the Statement of Work.
"Formal Agreement" means an agreement including a service agreement, master service agreement or engagement letter, executed between Fabric and the Customer, as noted in the Statement of Work.
"Intellectual Property Rights" means any rights in or to any patent, copyright, database rights, registered design or other design right, utility model, trade mark, eligible layout right, chip topography right and any other rights of a proprietary nature in or to the results of intellectual activity in the industrial, commercial, scientific, literary or artistic fields, whether registrable or not and wherever existing in the world, including all renewals and extensions.
"Services" means any services as set out in the Statement of Work requested by the Customer and agreed by Fabric.
"Standard Terms and Conditions" means these standard terms and conditions.
"Statement of Work" or "SoW" means a document of that name issued by Fabric which specifies as a condition that these Standard Terms and Conditions are incorporated into that Statement of Work or SoWs.
10.1 In this Agreement:
(a) references to a party means either Fabric or the Customer and their respective executors, administrators, successors and permitted assigns and substitutes;
(b) the headings are for convenience only and do not affect the construction or interpretation;
(c) unless the context requires otherwise, words importing the singular include the plural and vice versa;
(d) references to any person include references to any human being, company, body corporate, association, joint venture, partnership, trust and any entity capable of suing and being sued;
(e) a reference to any statute includes references to that statute as from time to time amended, consolidated or re-enacted and all rules, regulations, statutory instruments or orders made under it; and
(f) "including" means "including without limitation" and "includes" or "include" and "in particular" are to be understood similarly.