Specifi^® Terms of Service

• Definitions

In this Agreement unless the context otherwise requires:

• Agreement means these standard terms and all schedules, annexures and attachments to it.
• Authorised Agents means the Provider’s employees, consultants, contractors, agents and partners. The parties acknowledge and agree that for the purposes of this Agreement, the Financier is an Authorised Agent.
• Authorised User means Customer's employees, consultants, contractors, and agents:
  1. who are authorized by Customer to access and use the Services under the rights granted to Customer pursuant to this Agreement; and
  2. for whom access to the Services has been purchased hereunder.
• Business Day means a day on which banks are open for general banking business in Australia, excluding Saturdays, Sundays or public holidays in Australia.
• Confidential Information means all information relating to a party, its business, operations, products, processes, customers or suppliers which is or might reasonably be considered by to be confidential including all business plans and reports, business methods and systems, business records, product information, unpublished financial accounts and reports, discount and supply agreements, but excluding any of the foregoing which, as evidenced in writing, was lawfully in the public domain at the time of its disclosure.
• Customer Data means, other than Statistics, information, data, spreadsheets and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Customer or an Authorized User through the Services including but not limited to data relating to the Customer, Authorised Users or customers of the Customer.
• Disclosing Party means a party that discloses Confidential Information to the other party.
• Documentation means Provider's [user spreadsheets, manuals, and guides relating to the Services provided by Provider to Customer either electronically or in hard copy form/end user documentation relating to the Services available at https://us.specifiglobal.com/.
• Commencement Date means the date this Agreement commences.
• End User means commercial kitchen equipment dealers within the Territory.
• End User Licence Agreement means the sublicence agreement to be entered into between the Customer and End Users in relation to the Provider IP as annexed to this Agreement.
• Fee means the licence fee set out in the Schedule payable by the Customer to the Provider for the Term in exchange for the Licence.
• Financier means Silver Chef Rentals Pty Ltd ACN 112 241 522 and its related entities.
• Financier Quote means a quote for the Financier’s Rent-Try-Buy product which appears on all quotes generated by or using the Platform or the Provider IP.
• Force Majeure Event means an event or circumstance beyond a party’s reasonable control, which could not have been foreseen and is not able to be overcome by the exercise of reasonable care and proper precautions, including but not limited to an act of God, fire, explosion, industrial dispute, Act of Government such as a change in legislation, regulation or order made under legislative authority or anything beyond the party's control. an act of God, cyclone, fire, flood, act of war, epidemic, pandemic, terrorist attack, civil riot, governmental ruling or decree.
• GST means goods and services tax under the GST Law.
• GST Act means A New Tax System (Goods and Services Tax) Act 1999 (Cth), as in force from time to time.
• GST Law has the same meaning as in the GST Act.
• Licence means the licence granted by the Provider to the Customer to use the Platform.
• Platform means the cloud-based kitchen equipment specification platform owned by the Provider which, among other things:
  1. connects users to suppliers and manufacturers of commercial kitchen equipment;
  2. automatically creates customer quotes for the purchase of commercial kitchen equipment.

Platform includes all Intellectual Property Rights relating to the Platform and any other Intellectual Property Rights owned or used by the Provider in connection with the Platform, including any improvements, updates or developments necessary to give effect to this Agreement..

• Provider IP means the Services, the Documentation, and any and all intellectual property provided to Customer or any Authorized User in connection with the foregoing. For the avoidance of doubt, Provider IP includes Statistics and any information, data, or other content derived from Provider's monitoring of Customer's access to or use of the Services but does not include Customer Data.
• Services means the software-as-a-service offering described in the Schedule.
• Statistics means:
  1. aggregate data and information related to Customer's use of the Services that is used by Provider in an anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services; and
  2. information and data (which may include but not be limited to personal information, as that term is defined in the Australian Privacy Law) obtained by the Customer from customers of the Customer, to enable the Financier at any time from requesting a quote through to settlement to provide finance in respect to the purchase of commercial kitchen equipment.
• • Interpretation

  In this Agreement headings are for convenience only and do not affect the interpretation of this Agreement and, unless the context otherwise requires:

  • headings and subheadings are for convenience only and do not affect the interpretation of this Agreement.
  • references to clauses, schedules, annexures, appendices, attachments and Schedules are references to the clauses of, and the Schedules, annexures, appendices, attachments and Schedules to, this Agreement.
  • references to parties are references to the parties to this Agreement.
  • a reference to this Agreement includes any variation or replacement of it;
  • a reference to a statute, code or other Law includes regulations and other instruments under it and consolidations, amendments, re-enactments or replacements of any of them occurring at any time before or after the date of this Agreement;
  • the singular includes the plural and vice versa;
  • a reference to a person includes a firm, a body corporate, an unincorporated association or an authority;
  • an obligation, representation or warranty in favour of two or more persons is for the benefit of them jointly and severally;
  • an obligation, representation or warranty on the part of two or more persons binds them jointly and severally; and
  • a reference to a clause or a schedule is a reference to a clause or a schedule in this Agreement; and
  • a monetary amount is a reference to Australian or New Zealand Dollars, where appropriate.

This Agreement commences on the Commencement Date and continues for the Term, unless terminated earlier in accordance with this Agreement.

• Automatic Renewal

This Agreement will automatically renew for periods of one year on each the anniversary of the Commencement Date unless the Customer gives the Provider at least 90 days written notice, prior to the expiration of the then-current term, of its intention to terminate the Agreement at the end of the Term.  Each renewed term will form part of this Agreement.  

• Relationship of the Parties

This Agreement is not evidence of, nor does it create an exclusive relationship between the Company and the Supplier with respect to the Services. The Supplier acknowledges that it is part of a panel arrangement for the provision of the Services to the Company.

• • Use
    • In exchange for the payment of the Fee to the Provider and the observance of all other terms of this Agreement by the Customer, the Provider grants to the Customer for the Term, a non-exclusive, non-transferable licence to use the Platform and any associated Provider IP, necessary to give effect to this licence.
    • The Customer agrees:
      1. use of the Platform and the Licence is limited to internal use within the Customer’s business only;
      2. only Authorised Users of the Customer may use the Licence;
  • unless agreed to in writing by the Provider (and subject to any appropriate adjustment of the Fee) the total number of Authorised Users will not exceed the number set out in the Schedule.
  • Restrictions on Use
    • The Customer agrees not to:
      1. without the prior written consent of the Provider, use or permit the use of the Platform or the Licence for any purpose beyond the scope of access granted in this Agreement;
      2. change the form of any quote or document generated using the Platform or the Provider IP. Without limiting the generality of this clause, the Customer acknowledges and agrees that it may not remove the Financier’s details or the Financier’s Quote from any quote or document generated using the Platform;
  • copy, modify or create derivative works of the Platform, the Provider IP or the Documentation;
  1. rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Platform, the Provider IP or the Documentation;
  2. reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Platform in whole or in part;
  3. remove any proprietary notices from the Platform, the Provider IP or the Documentation; or
  • use the Platform, the Provider IP or the Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law.
  • Statistics
    • Notwithstanding anything to the contrary in this Agreement, the Provider may monitor the Customer's use of the Services and collect and compile Statistics. As between the Provider and the Customer, all right, title, and interest in the Statistics, and all intellectual property rights therein, belong to the Provider.
    • The Customer acknowledges and agrees that the Provider may:
      1. compile Statistics based on Customer Data input into the Services;
      2. disclose any Statistics to third party service providers who assist the Provider in operating the Provider’s business, including but not limited to the Financier for the purposes of:
         • providing the Customer with better service including providing personalised products and services tailored to customers needs and the needs of the Customer’s customers;
         • market research;
         • enabling the Financier to assist the Customer and any customers of the Customer to obtain and communicate pre-approval for finance to purchase commercial kitchen equipment.
  • make Statistics publicly available in compliance with applicable law;
  1. use Statistics to the extent and in the manner permitted under applicable law.
  • Access
    • Upon payment of the Fee to the Provider, the Provider will provide to the Customer all user login details, training materials, user reference guides, system manuals, network links, connections and any other material or documentation necessary to enable the Customer to use the Licence and the Platform.
  • Ownership of Provider IP
    • The Customer acknowledges that the Platform, the Provider IP and the Documentation belongs to the Provider and the Customer has no rights in or to the Platform, the Provider IP and the Documentation, other than the right to use it in accordance with this Agreement.
    • This Agreement does not:
  1. transfer any legal or beneficial ownership or rights in the Platform, the Provider IP or the Documentation to the Customer;
  2. grant, by implication, waiver, estoppel, or otherwise, to Customer or any third party any intellectual property rights or other right, title, or interest in or to the Platform, the Provider IP or the Documentation;
  • the Provider reserves all rights not expressly granted to Customer in this Agreement;
  1. constitute a transfer of the business of the Provider to the Customer.
     • Effect of Agreement

  This Agreement does not prevent or restrict the Provider’s right to:

  • carry on the business of the Provider; or
  • otherwise use or deal with the Platform, the Provider IP and the Documentation.

• The Customer will pay the Provider the Fee without set off or deduction on or before the Commencement Date.
• If the Customer fails to make any payment when it falls due, then without limiting the Provider's other rights and remedies:
  1. the Provider may charge interest on the past due amount at the rate published by the Australian Taxation Office as the general interest charge (“GIC”) from time to time; and
  2. the Customer will reimburse the Provider for all reasonable costs incurred by the Provider in collecting any late payments or interest, including reasonable attorneys' fees, court costs, and collection agency fees.
•  

• • Notwithstanding anything to the contrary in this Agreement, the Provider may temporarily suspend the Customer and any Authorized User's access to any portion or all of the Services if:
    1. the Provider reasonably determines that:
       • there is a threat or attack on any of the Provider IP;
       • the Customer or any Authorized User's use of the Provider IP disrupts or poses a security risk to the Provider IP or to any other customer or vendor of Provider;
       • the Customer or any Authorized User is using the Provider IP for fraudulent or illegal activities;
       • subject to applicable law, Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or
       • the Provider's provision of the Services to Customer or any Authorized User is prohibited by applicable law;
    2. any vendor of the Provider has suspended or terminated the Provider's access to or use of any third-party services or products required to enable the Customer to access the Services; or
  • if the Customer fails to make any payment as and when due and such failure continues for a period of fifteen days or more, after the Provider gives written notice to the Customer;
  • The Provider will use commercially reasonable efforts to:
    1. provide written notice of any Service Suspension to the Customer and to provide updates regarding resumption of access to the Services following any service suspension; and
    2. resume providing access to the Services as soon as reasonably possible after the event giving rise to the service suspension is cured.
  • The Provider will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that the Customer or any Authorized User may incur as a result of a service suspension.

• • Use
    • • The Customer is responsible for all use of the Licence, the Platform, the Provider IP and the Documentation resulting from access provided by the Customer, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement.
      • Without limiting the generality of this clause, the Customer is responsible for all acts and omissions of Authorized Users and any act or omission by an Authorized User that would constitute a breach of this Agreement if taken by the Customer will be deemed a breach of this Agreement by Customer.
      • The Customer will use reasonable efforts to ensure all Authorized Users are aware of this Agreement's provisions as applicable to such Authorized User's use of the Services and shall cause Authorized Users to comply with this Agreement.
    • Protection of Provider IP
      • The Customer must:
        1. not at any time during the Term or after its expiration or termination apply for registration of the Provider IP or any form of Intellectual Property Right which includes or is derived from or is similar to the Provider IP;
        2. use its best endeavours to:
           • preserve and maintain the value of the Provider IP; and
           • protect the goodwill, rights and reputation of the Provider in relation to the Provider IP;
    • must not do or cause to be done at any time any act or thing contesting, challenging, prejudicing, questioning or in any way impairing:
      • any right, title and interest (including Intellectual Property Rights) which the Provider has in the Provider IP;
      • the validity of any registrations of Intellectual Property Rights relating to any of the Provider IP; or
      • the success of any application by the Provider to register the Intellectual Property Rights in relation to the Provider IP.
    • Infringement

    If the Customer becomes aware of any:

  the Customer must immediately notify the Provider by giving the Provider all the information concerning the infringement or threatened infringement, allegation or claim available to the Customer. The Customer must not take any other steps in relation to either (a) or (b) above without the prior consent of the Provider.

  • Infringement Proceedings
    • The Provider may in its absolute discretion commence proceedings in respect of any infringement of the Provider IP or other cause of action connected with the Provider IP and will have the full conduct of such proceedings.
    • At the request of the Provider, the Customer must:
      1. provide all and any information concerning the Customer’s use of the Provider IP; and
      2. must render its co-operation and assistance to the Provider in any dispute, litigation or settlement in relation to the Provider IP.
    • Auditing Rights and Record Keeping

  The Customer agrees to maintain complete and accurate records in accordance with generally accepted accounting principles during the Term and for a period of two years after the termination or expiration of this Agreement with respect to matters necessary for accurately determining amounts due hereunder.

• • Provider Improvements
    • During the Term, the Provider will promptly disclose and make fully available to the Customer, all improvements, modifications and developments made to the Platform, the Provider IP and the Documentation (Provider Improvements) as soon as the Provider has ascertained that the improvements, modifications and developments are technically practicable for use. For the avoidance of doubt, the parties agree that ownership of the Provider Improvements will vest in the Provider who is responsible for the improvements.
    • If the Customer or any of its employees or contractors sends or transmits any communications or materials to the Provider by mail, email, telephone, or otherwise, suggesting or recommending changes to the Provider IP, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (Feedback), Provider is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback.
    • The Customer hereby assigns to the Provider on the Customer's behalf, and on behalf of its employees, contractors and/or agents, all right, title, and interest in, and the Provider is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever. For the avoidance of doubt, the Provider is under no obligation to use any Feedback in any way including in respect to Provider Improvements.  
  • No Modifications without consent

  The Customer must not modify, develop, improve, adapt or alter any or all of the Provider IP without the prior consent of the Provider.

  • Conditions on Improvements

  The terms of this Agreement apply, with necessary modification, to the Provider Improvements.

• Maintenance and Support
  • The access rights granted hereunder entitle the Customer to:
    1. the support services required to get familiar with the software and new features through video tools found on the Provider's website located at https://us.specifiglobal.com/; and
    2. access to the Provider’s help desk from time to time for the duration of the Term.
  • Additional training and onboarding help can be negotiate on a case-by-case basis.

• • Termination
    • Either party may terminate this Agreement prior to the end of the Term where the other party (Defaulting Party) materially breaches any term or condition of this Agreement and has failed to remedy the breach within 30 days of the terminating party providing notice of the breach to the Defaulting Party.
    • For the avoidance of doubt, the following will constitute a material breach:
      1. if the Customer fails to pay any amount as and when it falls due;
      2. if the Customer breaches clause 3 of this Agreement;
  • the other party:
    • becomes insolvent is generally unable to pay, or fails to pay, its debts as they become due;
    • files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law;
    • makes or seeks to make a general assignment for the benefit of its creditors; or
    • applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
  • Upon termination or expiry of the Agreement, unless otherwise agreed to by the parties, the Customer must:
    1. immediately cease all use and application of the Platform, the Documentation and the Provider IP;
    2. destroy, delete or return all copies of the Provider IP and certify in writing to the Provider that the Provider IP has been deleted or destroyed.
  • immediately cease to hold itself out as having any rights in relation to the Platform, the Documentation or the Provider IP from the date of termination.
  • No expiration or termination of this Agreement will affect:
    1. the Customer's obligation to pay all Fees that may have become due before such expiration or termination or entitle Customer to any refund;
    2. a party arising out of this Agreement up to and including the date of termination and all other provisions which are expressed to survive this Agreement will remain in full force and effect.

• Provider’s Indemnification
  • The Provider indemnifies the Customer from and against any and all losses, damages, liabilities, costs (including attorneys' fees) (Losses) incurred by the Customer resulting from any third-party claim, suit, action, or proceeding (Third-Party Claim) that the Platform, the Provider IP or the Services, or any use of the Platform, the Provider IP or the Services in accordance with this Agreement, infringes or misappropriates such third party's patents, copyrights, or trade secrets, provided that the Customer promptly notifies the Provider in writing of such Third-Party Claim, cooperates with the Provider, and allows the Provider sole authority to control the defence and settlement of such Third-Party Claim.
  • If a Third Party-Claim is made or appears possible, the Customer agrees to permit the Provider, at the Provider's sole discretion, to:
    1. modify or replace the Services, or a component or part thereof, to make it non-infringing; or
    2. obtain the right for the Customer to continue use.

If the Provider determines that neither alternative is reasonably available, the Provider may terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to the Customer.

• This will not apply to the extent that the alleged infringement arises from:
  1. use of the Services in combination with data, software, hardware, equipment, or technology not provided or authorised by the Provider in writing;
  2. modifications to the Services not made by the Provider; or

• Customer Data.

• Customer’s Indemnification

The Customer indemnifies and, at the Provider's option, defends the Provider from and against any Losses resulting from any Third-Party Claim that the Customer Data, or any use of the Customer Data in accordance with this Agreement, infringes or misappropriates such third party's intellectual property rights and any Third-Party Claims based on the Customer or any Authorised User's:

• negligence or wilful misconduct;
• use of the Platform, the Provider IP or the Services in a manner not authorised by this Agreement;
• use of the Platform, the Provider IP or the Services in combination with data, software, hardware, equipment, or technology not provided by the Provider or authorised by the Provider in writing; or
• modifications to the Platform, the Provider IP or the Services not made by the Provider,

provided that the Customer may not settle any Third-Party Claim against the Provider unless the Provider consents to such settlement, and further provided that the Provider will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defence thereof by counsel of its own choice.

• Provider’s Limitation of Liability
  • In no event will the Provider be liable under or in connection with this Agreement under any legal or equitable theory, including breach of contract, tort (including negligence), strict liability, and otherwise, for any:
    1. consequential, incidental, indirect, exemplary, special, enhanced, or punitive damages;
    2. increased costs, diminution in value or lost business, production, revenues, or profits;

• loss of goodwill or reputation;

1. use, inability to use, loss, interruption, delay, or recovery of any data, or breach of data or system security; or
2. cost of replacement goods or services,

in each case regardless of whether the Provider was advised of the possibility of such losses or damages or such losses or damages were otherwise foreseeable.

• In no event will the Provider's aggregate liability arising out of or related to this Agreement under any legal or equitable theory, including breach of contract, tort (including negligence), strict liability, and otherwise exceed two times the total amounts paid to the Provider under this Agreement in the two year period preceding the event giving rise to the claim or $10,000, whichever is less.

• Sole Remedy

The Customer acknowledges and agrees that this clause sets forth the Customer's sole remedies and the Provider's sole liability and obligation for any actual, threatened, or alleged claims that the services infringe, misappropriate, or otherwise violate any intellectual property rights of any third party. In no event will provider's liability under this section exceed two times the Fee paid for the Licence.

• • Obligation of Confidentiality

  Each party agrees:

  • to keep strictly secret and confidential the Confidential Information;
  • not to use, copy, publish, divulge or disclose in any manner whatsoever the Confidential Information to any person including its employees, associates, directors, officers, consultants, agents or contractors other than to the extent strictly necessary to allow the Customer to effectively use the Provider IP in accordance with this Agreement; and
  • not to use the Confidential Information for any purpose other than as expressly authorised under this Agreement.
  • Exclusion

  The obligations of confidence in clause 5.1 do not apply to the extent that Confidential Information:

  • is required to be disclosed by applicable law or legally binding order of any court, as long as the Recipient discloses the minimum amount of Confidential Information required to satisfy the law and, before disclosing any Confidential Information, gives all reasonably available notice to the Disclosing Party to enable the Disclosing Party to legally challenge the required disclosure and, if required by the Disclosing Party, takes all available steps to maintain such Confidential Information in strict confidence;
  • is received from a third party whose disclosure does not violate any confidentiality obligation;
  • is in the public domain otherwise than as a result of a breach of this Agreement or other obligation of confidence; or
  • is independently developed by the Recipient without reference to the Confidential Information or in breach of this Agreement.
  • Permitted disclosure

  If the Recipient discloses Confidential Information as permitted under this Agreement, then except to the extent of any exclusion in accordance with clause 5.2 the Recipient must ensure that the person complies with the requirements of clause 5.1 as if they were the Recipient.

• By accepting the terms of this Agreement, the Customer hereby consents to the Provider and its Authorised Agents using the Customer’s company name, logo and content (including but not limited to multimedia, textual, and visual elements) as well as the fact that the Customer is a customer of the Provider, in the Provider’s marketing materials.

• • Notices
    • Form of communication
  • Unless expressly stated otherwise in this Agreement any notice, certificate, consent, request, demand, approval, waiver or other communication (Notice) must be:
    1. in legible writing and in English;
    2. signed by the sender (if an individual) or where the sender is a company, signed by an officer or in accordance with section 127 of the Corporations Act; and
  • marked for the attention of and addressed to the addressee.
  • A Notice can be relied upon by the addressee and the addressee is not liable to any other person for any consequences of that reliance if the addressee believes it to be genuine, correct and authorised by the sender.
    • Delivery of Notices
  • Notices must be hand delivered or sent by prepaid express post (next day delivery) or email to the addressee’s address for notices specified in the notice details in the parties section of this Agreement or to any other address or email a party notifies to the other parties under this clause.
  • In this clause 1, reference to an addressee includes a reference to an addressee’s officers, agents or employees or any person reasonably believed by the sender to be an officer, agent or employee of the addressee.
    • When Notice is effective
  • Notices take effect from the time they are received or taken to be received under clause (d) below (whichever happens first) unless a later time is specified.
    • When Notice taken to be received
  • Notice is taken to be received by the addressee if by:
    1. delivery in person, when delivered to the addressee;
    2. prepaid express post, on the second Business Day after the date of posting;
  • post, three Business Days from and including the date of postage; or
  1. subject to (e) below, electronic mail (e-mail), four hours after the sent time (as recorded on the sender’s e-mail server), unless the sender receives a notice from the recipient’s email server or internet service provider that the message has not been delivered to the recipient.
  • Legible Notices and receipt outside business hours
    12. An e-mail is regarded as legibly received unless the addressee telephones the sender within 4 hours after the e-mail is received or regarded as received under clause 1(d) and informs the sender that it is not legible.
    13. Despite clauses 1(c) and (d), if a Notice is received or taken to be received under this clause 12.1 after 4:00pm in the place of receipt or on a non-Business Day, it is taken to be received at 9:00am (recipient’s time) on the following Business Day and take effect from that time unless a later time is specified in the Notice.
  • Governing law and jurisdiction
    • This Agreement is governed by the laws of Queensland.
    • Each party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts of Queensland and any courts which have jurisdiction to hear appeals from any of those courts in respect of any proceedings in connection with this Agreement.
    • Each party waives any right it has to object to an action being brought in the courts of Queensland including, without limitation, by claiming that the action has been brought in an inconvenient forum or that those courts do not have jurisdiction.
  • Prohibition or enforceability
    • Any provision of, or the application of any provision of this Agreement, which is prohibited, void, illegal or unenforceable in any jurisdiction:
      1. is, in that jurisdiction, ineffective only to the extent to which it is void, illegal, unenforceable or prohibited;
      2. does not affect the validity, legality or enforceability of that provision in any other jurisdiction or of the remaining provisions of this Agreement in that or any other jurisdiction; and
  • is severable from this Agreement and will not affect the remaining provisions of this Agreement.
  • The application of this clause 3 is not limited by any other provision of this Agreement in relation to severability, prohibition or enforceability.
  • Waivers
    • A waiver of any right, power, authority, discretion or remedy arising upon a breach of or default under this Agreement must be in writing and signed by the party granting the waiver.
    • A failure or delay in the exercise, or partial exercise, of a right, power, authority, discretion or remedy arising from a breach of or default under this Agreement, does not prevent the exercise of or result in a waiver of that right, power, authority, discretion or remedy at a later time.
    • A party is not entitled to rely on a delay in the exercise or non‑exercise of a right, power, authority, discretion or remedy arising from a breach of this Agreement or default under this Agreement as constituting a waiver of that right, power, authority, discretion or remedy.
    • A party may not rely on any conduct of another party as a defence to the exercise of a right, power, authority, discretion or remedy by that other party.
    • A waiver is only effective in the specific instance and for the specific purpose for which it is given.
  • Variation

  A provision of this Agreement or a right or obligation created under it may not be varied except in writing and signed by all the parties.

  • Cumulative rights

  The powers, rights and remedies of a party under this Agreement are in addition to and do not exclude any other power, right or remedy provided by law or otherwise.

  • Further assurances

  Each party must do all things reasonably necessary to give full effect to this Agreement and the transactions contemplated by this Agreement.

  • Specific performance

  Each party acknowledges that monetary damages alone would not be adequate compensation to the other party for a breach of its obligations under this Agreement and that accordingly injunctive relief, specific performance of those obligations and/or any other equitable remedy may be an appropriate remedy.

  • Force Majeure
    • Delay event: Any party may give notice to the other party of the occurrence of a Force Majeure Event which causes that party to delay in performing, or to become unable to perform, its obligations pursuant to this Agreement, excluding the payment of money then due and payable.
    • Notification: The notice will be given within a reasonable time following that occurrence and specify full details of the occurrence and its effect.
    • Contract suspension: The obligations of that party will, following notice, be suspended during the continuance of that cause, without that party being in breach of or default under this Agreement or conferring any right on the other party to terminate this Agreement.
  • Entire agreement
    • This Agreement embodies the entire agreement between the parties with respect to the subject matter of this Agreement and supersedes any prior negotiation, arrangement, understanding or agreement with respect to the subject matter or any term of this Agreement.
    • Any statement, representation, term, warranty, condition, promise or undertaking made, given or agreed to in any prior negotiation, arrangement, understanding or agreement, has no effect except to the extent expressly set out or incorporated by reference in this Agreement.
  • Relationship

  The parties acknowledge and agree that nothing in this Agreement will constitute one party the partner of, employee of, agent of, or joint venturer with, the other and that other than as expressly provided for in this Agreement no party will have the right to bind the other without the other’s prior written consent.

  • Third party rights

  No person other than the parties have or is intended to have any right, power or remedy or derives or is intended to derive any benefit under this Agreement.

  • Counterparts
    • This Agreement may be executed in any number of counterparts.
    • All counterparts, taken together, constitute one instrument.
    • A party may execute this Agreement by signing any counterpart.
    • This Agreement is binding on the parties on exchange of counterparts. A copy of a counterpart that is electronically scanned and emailed:
      1. must be treated as an original counterpart;
      2. is sufficient evidence of the execution of the original; and
  • may be produced in evidence for all purposes in place of the original.
  • Non-merger

  No provision of this Agreement merges on execution, completion or termination.

  • Continuing indemnities and survival of indemnities
    • Each indemnity contained in this Agreement is a continuing obligation despite a settlement of account or the occurrence of anything, and remains in full force and effect until all money owing, contingently or otherwise, under an indemnity has been paid in full.
    • Each indemnity contained in this Agreement:
      1. is an additional, separate and independent obligation of the party giving the indemnity and no one indemnity limits the generality of any other indemnity; and
      2. survives the termination of this Agreement.
    • No Assignment or sublicence

  The Customer may not assign or sublicence this Agreement or otherwise transfer the benefit of this Agreement or an obligation, right or remedy under it, without the prior written consent of the Provider which consent will not be unreasonably withheld.

  • Costs

  Each party will bear its own legal and other costs and expenses relating directly or indirectly to the preparation of, and performance of its obligations under, this Agreement except as otherwise expressly provided in this Agreement.

  • Legal Advice

  Each party acknowledges that it has received legal advice in respect of this Agreement or has had the opportunity of receiving legal advice about this Agreement.

  • GST
    • Definitions
      12. In this clause 19 the expressions adjustment note, consideration, GST, supply, tax invoice, supplier, recipient and taxable supply have the meanings given to those expressions in the GST Act.
      13. For the avoidance of doubt, GST excludes any penalties or additional tax imposed in relation to the GST.
    • Sums exclude GST
  • Unless otherwise expressly stated, the consideration to be provided or payment obligation under this Agreement is exclusive of GST.
    • Responsibility for GST
      1. Despite any other provision in this Agreement, if GST is imposed on any supply made under this Agreement, the recipient must pay to the supplier an amount equal to the GST payable on the supply.
      2. The recipient must pay the amount referred to in clause 19(c)(i) in addition to and at the same time as payment for the supply is required to be made under this Agreement.
  • The supplier will be responsible for any GST penalties, interest or additional tax imposed on the supplier and attributable to its act or omission.
  • Tax invoice
  • If a supply is made to which GST applies or is varied under this Agreement, the supplier must provide to the recipient of the supply a valid tax invoice or adjustment note at or before the time of payment or variation.
    • Adjustment
  • If the amount of GST paid or payable by the supplier on any supply made under this Agreement differs from the amount of GST paid by the recipient, because the Commissioner of Taxation lawfully adjusts the value of the taxable supply for the purpose of calculating GST, then the amount of GST paid by the recipient will be adjusted accordingly by a further payment by the recipient to the supplier or the supplier to the recipient, as the case requires.
  • Set-off

  The parties have no contractual right of set-off or deduction of any amounts owing, contemplated or otherwise payable under this Agreement.

  • Dispute Resolution Process
    • If a dispute arises between the parties in respect of or in connection with this Agreement (including the validity, breach or termination of it), then without prejudice to any other right or entitlement they may have pursuant to this Agreement or otherwise, the parties will explore whether the dispute can be resolved by agreement between them using informal dispute resolution techniques such as negotiation, mediation, independent expert appraisal or any other alternative dispute resolution technique.
    • The rules governing any such technique adopted may be as agreed between the parties or, if the parties are unable to agree on a technique, such technique as is recommended by the Queensland Law Society or as selected by the Australian Commercial Disputes Centre.
    • If the dispute is not resolved by agreement within 30 days of written notice by one party to the other of the dispute (or such further period agreed in writing between the parties), either party may refer the dispute to the courts.
  • Consents
    • Unless otherwise specified, a party may exercise a right or remedy or give or refuse its consent under this Agreement and such consent will not be unreasonably withheld or delayed.
    • Each party agrees to comply with all conditions in any consent another party gives in connection with this Agreement.
  • Supervening legislation

  Any present or future legislation which operates to vary the obligations of a party in connection with this Agreement with the result that a party’s rights, powers or remedies are adversely affected (including by way of a delay or postponement) is excluded except to the extent that its exclusion is prohibited or rendered ineffective by law.