We agree to provide to you, and you agree to obtain from us, certain aviation engineering services on the terms and conditions set out in these Terms
1.1 We will provide to you the aviation engineering services as described in our letter or email (Proposal) provided along with these Terms and Conditions (Services).
1.2 These Terms and Conditions and the accompanying Proposal together form an offer (which will form a contract once accepted by you) for the provision of Services.
1.3 We will provide the Services materially in compliance with the specifications agreed by you and us (Specifications). You must provide the Specifications unless we agreed to develop them as part of the Services.
1.4 We will endeavour to provide the Services and any deliverables promptly and notify you of any delays in delivery, however any delivery dates are estimates only and we will not be liable for any delays caused by any reason whatsoever.
1.5 Subject to any agreement in writing between us and you, all documents and other materials provided by us in the course of providing the Services, including electronic documents (Deliverables) will be provided in an industry-standard format that we consider appropriate for the relevant Deliverable (which might not be an editable format), and the provision of Deliverables in any other format will be at our sole discretion and may incur further costs and/or be subject to additional conditions of use.
2.1 Unless otherwise agreed with you, we charge for the Services by reference to the time spent performing the Services, in accordance with our hourly rates.
2.2 We review our hourly rates periodically, having regard to market conditions and other factors. We will inform you of any changes to our hourly rates in advance of the different rates taking effect.
2.3 We may require you to pay a deposit in advance of us performing the Services. In that case, the Services will commence only after receipt of those funds.
2.4 We may invoice you for the Services at any time, but will generally do so monthly and/or at the conclusion of the Services. You must pay any invoice issued by us in accordance with the payment terms specified on our invoice or, if not specified, within 14 days of receipt.
2.5 All amounts due to us must be paid in Australian Dollars and in cleared funds, and free of any deduction, withholding or set-off for any reason whatsoever.
2.6 You agree to pay interest on any overdue amounts at the rate of 12% per annum, accruing daily from the due date of payment. You must pay us, and indemnify us in respect of, all costs and expenses we incur associated with the collection of any unpaid amounts.
2.7 You must pay an additional amount for any taxable supply by us to you equal to the amount of our fees multiplied by the prevailing GST rate. This additional amount will be included in our invoices. Any invoice will be in a format which constitutes a tax invoice for GST purposes.
3.1 In order for us to provide the Services, you agree to provide all relevant information in relation to the Services that we reasonably require. You should not assume we are aware of relevant information. If you become aware of any further information relevant to the Services, we request that you let us know immediately.
3.2 If any third party other than you wishes to rely on our work, they do so at their own risk, unless we agree in writing that they may also rely on it. You agree to indemnify us, and keep us indemnified, against any loss, damage, cost or expense arising directly or indirectly from a claim by a third party as a result of that third party relying on our work other than as agreed under this clause.
3.3 Unless expressly stated by us, any estimate given to you is a guide only and will not be interpreted as a cap on our fees or otherwise be binding on us in any way. Any such estimate is based on assumptions we make about the way we will work together. If these assumptions are not accurate, the costs may vary from our estimates. Our key assumptions include:
(a) the work is completed within the expected timeframe;
(b) we will be instructed by a single decision maker within your organisation, although multiple personnel may be involved in our provision of the Services;
(c) we will not be required to amend or revise the Deliverables once they have been provided to you, and you acknowledge and agree that any such amendment or revision may incur additional fees; and
(d) you will keep us involved and informed during the course of the Services. Where we have only partial knowledge and are required to revisit and revise our work due to new information provided to us at later stages, our costs are likely to increase.
3.4 We will not be responsible if new information becomes available after the Services are provided showing that a stated assumption was incorrect or a stated qualification was inapplicable.
4.1 Nothing in these Terms and Conditions operates to exclude, limit or otherwise modify the application of any statute where to do so would breach that statute or cause any part of this agreement to be void.
4.2 Subject to clause 4.1 and to the extent permitted by law:
(a) we exclude all terms, conditions, guarantees, warranties and representations implied or imposed by statute, general law, custom, international convention or other source external to these Terms and Conditions (including as to the description, merchantable quality or fitness for purpose of the Services);
(b) we exclude all liability to you for any indirect, special, incidental, economic or consequential loss or damage arising out of or in connection with these terms, including loss of revenue, income, profits, data, goodwill, business, opportunities or anticipated savings;
(c) we exclude all liability to you in tort (including negligence) for acts or omissions of us, our employees, agents and contractors arising out of or in connection with these Terms and Conditions;
(d) our liability to you (including liability of a kind that cannot be excluded under this clause) is limited to, at our option, the re-supply of the Services or the payment of the cost of resupplying the Services; and
(e) in no event will we be liable for greater than the total amount paid by you to us under these Terms and Conditions for the Services to which the breach relates (which for the avoidance of doubt is a total cumulative amount covering any and all such liability).
4.3 Without limiting the foregoing we will have no liability as a result of any act or omission of yours, ours or any other party on any account whatsoever with respect to any matter, circumstance or thing beyond our reasonable control.
4.4 If you provide the Specifications to us, you warrant that the Specifications are correct in all material respects, and you agree to indemnify us for any and all claim, loss or damage incurred by us arising directly or indirectly from any inaccuracy, error or omission in the Specifications.
4.5 You agree to indemnify us, and keep us indemnified, against any loss damage, cost or expense arising directly or indirectly from your use or implementation of the Services or any Deliverable supplied by us in a production environment or real-world setting or in any product, unless the liability is caused by the Deliverable or Service failing to comply with the requirements set out in these Terms and Conditions and the Proposal.
5.1 Either party may terminate these Terms and Conditions at any time on 7 days' written notice.
5.2 Without limiting its other rights, either party (Terminating Party) may terminate these Terms and Conditions with immediate effect by written notice to the other party (Defaulting Party) if:
(a) the Defaulting Party commits a breach of any material provision of these Terms and Conditions and fails to remedy that breach within 7 days after receiving a notice from the Terminating Party requiring it to do so;
(b) the Defaulting Party commits a breach of any material provision of these Terms and Conditions which is incapable of remedy in the Terminating Party’s reasonable opinion;
(c) the Defaulting Party becomes subject to any form of insolvency administration.
5.3 If either of us terminates these Terms and Conditions for any reason then you will be liable and obliged to pay us for all work we have done or necessarily do, including work properly done and charges properly incurred after the date of termination.
5.4 On termination of these Terms and Conditions each party must promptly return any confidential information and other property of the other party.
6.1 Nothing in these Terms and Conditions will constitute a transfer, assignment or grant of any ownership rights in any intellectual property unless otherwise expressly stated.
6.2 We either (as specified in the Proposal, or if not specified in the Proposal then clause 6.2(a) will apply):
(a) grant you an exclusive, non-transferable licence to use the intellectual property and Deliverables we provide to you in the course of the Services for the purposes of (and to the extent necessary to enjoy the benefit of) the Services and Deliverables; or
(b) will promptly assign all right, title and interest in all intellectual property rights that we own in any Deliverables (other than pre-existing intellectual property, which is licensed to you under clause 6.3),
subject to any limitations specified in the Proposal.
6.3 If and to the extent that any of our pre-existing intellectual property is combined with, or is required in order to use, any Deliverables, we grant you a non-exclusive, non-transferable licence to use that intellectual property necessary in order to use any Deliverables.
6.4 Unless otherwise agreed, if clause 6.4(b) applies:
(a) you grant us a non-exclusive, transferable, payment-free, worldwide, perpetual licence to use and adapt the Deliverables (including the methodology used to create the Deliverables);
(b) you acknowledge and agree that the Deliverables may otherwise contain or incorporate third party intellectual property.
6.5 Clauses 6.2, 6.3 and 6.4 are subject to you paying all fees in accordance with these Terms and Conditions.
6.6 All right, title and interest in all intellectual property rights in any proposal, submission or concept presented by us to you will remain or be vested in us and all such materials are deemed to constitute our Confidential Information, and will only form part of the Deliverables if and to the extent that they form part of the Services.
7.1 Subject to clause 7.2, each party:
(a) must keep confidential all confidential and proprietary information of the other party (Confidential Information);
(b) may use or disclose the Confidential Information solely for the purposes of providing the Services and enjoying the benefit of the Services; and
(c) may disclose Confidential Information of the other party only:
(i) to employees and contractors who are aware and agree that the Confidential Information must be kept confidential, and to the extent that each has a need to know the Confidential Information; or
(ii) as required by law or stock exchange regulation.
7.2 A party is not obliged to comply with clause 7.1 in relation to Confidential Information that:
(a) that party can demonstrate was already in that party’s possession or control and was not acquired directly or indirectly from the first party;
(b) becomes public knowledge through no breach of confidentiality; or
(c) that party became aware of from a third person entitled to make that disclosure.
7.3 Each party must notify the other party immediately it becomes aware of any breach of confidentiality regarding the other party’s Confidential Information and must take all reasonable steps necessary to prevent further unauthorised use or disclosure of the Confidential Information.
7.4 You acknowledge that we may seek an injunction or other relief if you or a person to whom you disclose Confidential Information breaches or threatens to breach the Contract or any other obligation in respect of the Confidential Information.
8.1 We may collect personal information in the course of providing the Services to you. We may not be able to provide the Services if the personal information requested is not provided.
8.2 Where you provide personal information to us that is personal information of a third party, you confirm that:
(a) the information has been collected in accordance with applicable privacy laws;
(b) we are authorised to receive that information from you and use it to provide the Services;
(c) unless exempted under the applicable privacy laws from doing so, you have taken reasonable steps to ensure that the individuals are aware, or would have expected, that their personal information could be provided by you to us.
8.3 We may use the personal information of the people instructing us, or otherwise communicating with us on your behalf, for our marketing and business development purposes unless you or they inform us not to do so.
9.1 Neither party may commence court proceedings in respect of a dispute arising out of the Agreement (Dispute) until it has complied with this clause.
9.2 A party claiming that a Dispute has arisen must notify the other party in writing, setting out details of the Dispute.
9.3 During the 7 day period after a notice is given under clause 9.2 (Initial Period) each party must use its best efforts to resolve the Dispute.
9.4 If the parties are unable to resolve the Dispute within the Initial Period (or any extension of that period agreed in writing) then:
(a) they must within a further 7 days appoint a mediator to mediate the Dispute; or
(b) if the parties fail to agree on a mediator within that time, either of them may refer the Dispute for mediation to a mediator nominated by the then current president of the Law Society of South Australia,
and the parties must thereafter mediate the Dispute.
9.5 The terms on which the mediation is conducted and the procedure for the mediation will unless otherwise agreed in writing between the parties and the mediator be those prescribed by the Rules and Practice Directions of the Supreme Court of South Australia from time to time.
9.6 Unless otherwise agreed in writing between the parties the mediation will be conducted in Adelaide, Australia.
9.7 Each party must bear its own costs of resolving a Dispute in accordance with this clause and the parties must unless otherwise agreed bear equally the fees and proper out of pocket expenses of the mediator and any other third party expenses related to the mediation.
9.8 Nothing in this clause shall prevent the making of an application to the court by any party to the Dispute for urgent injunctive or declaratory relief.
10.1 A notice under these Terms and Conditions must be in writing and delivered to the address notified by the recipient from time to time.
10.2 These Terms and Conditions are governed by and are to be construed in accordance with the laws applicable in South Australia, Australia. Each party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts of South Australia, Australia and any courts which have jurisdiction to hear appeals from any of those courts and waives any right to object to any proceedings being brought in those courts.
10.3 We will not be liable to you or in breach of these Terms and Conditions by reason of any delay in performing, or any failure to perform, any of our obligations in relation to the Services, if the delay or failure was due to anything outside our reasonable control including, without limitation, fire, storm, flood, earthquake, explosion, accident, enemy acts, war, rebellion, insurrection, sabotage, epidemic, quarantine restriction, labour dispute, labour shortage, transportation embargo or failure or delay in transportation.
10.4 If a provision of these Terms and Conditions is illegal or unenforceable in any relevant jurisdiction, it may be severed for the purposes of that jurisdiction without affecting the enforceability of the other provisions of these Terms and Conditions unless severing the provision materially alters the scope and nature of the Terms and Conditions or would be contrary to public policy.
10.5 A party’s failure to insist another party perform any obligation under these Terms and Conditions is not a waiver of that party’s right to insist the other party perform, or to claim damages for breach of, that obligation, nor to insist the other party perform any other obligation, unless the waiving party acknowledges the waiver in writing.
10.6 The provisions of these Terms and Conditions by their nature intended to survive the expiry or termination of these Terms and Conditions will survive the expiry or termination of these Terms and Conditions.
10.7 Any variation or modification of these Terms and Conditions must be in writing and signed by us and you, however we have the right by reasonable notice to you to amend, modify or change these Terms and Conditions where considered by us to be necessary to accommodate circumstances beyond our reasonable control which might affect the Services.
10.8 A party must not assign its interest in these Terms and Conditions without the prior written consent of the other party, and any purported dealing in breach of this clause is of no effect.
These Terms and Conditions constitute the entire agreement between the parties about the subject matter and supersedes all previous representations, understandings and agreements in connection with that subject matter