Terms

Standard terms & conditions of engagement (“the standard terms”)

This document forms part of your engagement with Origin Digital Consultants Pty Ltd (“We” or “Us” or “Our”) and must be read in conjunction with the terms outlined in our Engagement Letter and summary of engagement schedule attached.

1. Acceptance
   We will be providing the services outlined in the attached Engagement Letter (“Services”).  Any services that you require us to provide, by giving us either written or oral instruction, that is outside the scope of our engagement specified in the attached Engagement Letter, shall also be subject to these Standard Terms.When you accept these Standard Terms and the Engagement Letter, together they constitute the terms and conditions of the agreement between Us and You (“this Agreement”).  You may accept this Agreement by signing and returning this Agreement, or by giving us a written or oral instruction to provide the services to you after you have received this Agreement.Our work will be based solely on the information provided, the circumstances made known to us and the assumptions set out in our correspondence.  We rely on you to bring to our attention, as soon as possible, any changes in the information as it was originally presented as it may impact on our advice and the cost of our services provided to you.Unless expressly stated otherwise, the services do not constitute financial or legal advice.
2. General
   1. We may at any time require you to:
      1. pay to us an amount to enable payment of our fees and expenses incurred in providing you with our services, or to provide security for them; and
      2. enter into a direct debit arrangement, whereby our fees and expenses are directly debited against the account nominated by you.
   2. By making payment to us pursuant to clause 2.1, you authorise us to draw on those money paid us to pay our fees and expenses when invoices are rendered.
   3. Where fees and expenses are paid using moneys held in our trust account or by direct debit facility, you will be sent an invoice and statement within fourteen (14) days after such payment has been made.
   4. You agree to pay all invoices within 14 days of receipt of any invoice whether or not you have a right of indemnity or recovery from a third party (including, but not limited to, a related entity) and whether or not you receive an amount from a third party for payment of our invoice, which is less than the amount of our invoice.
3. Unpaid invoices
   If any of your invoices are unpaid for a period of fourteen (14) days after our invoice is given to you, or a request for payment under clause 2.1 is not complied with within fourteen (14) days after the request is made by us, we may elect to terminate this Agreement or:
   1. not to perform any further work for you until all unpaid invoices are paid in full;
   2. to retain custody of any of your papers, documents or files until all unpaid invoices are paid in full and
   3. to charge interest on any amount that is outstanding for a period of fourteen (14) days after the date on which our invoice is given to you at the rate of 10% per annum calculated daily and compounded monthly until all interest and outstanding amounts are paid in full.
4. GST
   All goods and services tax (“GST”) payable on any fee or disbursement incurred in rendering any services pursuant to this Agreement (including but not limited to any GST payable for any service provided by us), is to be paid by you in addition to other costs and disbursements detailed above. An account given by us to you, which is a tax invoice, specifying the amount of GST payable shall be conclusive except in the case of obvious error.
5. Lien
   Without limiting any other legal rights which we have, you authorise us to retain by way of lien any funds, property or documents which are from time to time in our possession or control until all fees, costs, expenses and interest due to us have been paid. These rights continue until we are paid, although we may have ceased to act for you in accordance with this Agreement as a result of either you or us terminating this Agreement. Our rights under this lien are in addition to any rights which we may have at common law or otherwise.
6. Fees
   1. We charge either a fixed fee agreed between us for the specified services or alternatively we charge for all time spent on your matter by our staff in accordance with our standard hourly rates set out in our Letter of Engagement.
   2. If our fee is not fixed, we will provide to you upon request an estimate of the likely amount of our fees and disbursements on any particular matter. However, you will appreciate that it is extremely difficult for us to predict the precise amount of fees which may be involved in any particular matter. Any estimate will be based on the information which you have provided to us and will also be given on the assumption that no complications arise and no work is required beyond that which you have outlined to us We must stress that any estimate is not a quote and our fees for any matter will be calculated in the manner set out in this Agreement unless agreed in writing to the contrary.
7. Involvement of others
   1. Where, as part of our engagement, the services of an external consultant, expert or other third party (“Consultants”) are required, then we will disclose to you the following information and obtain your approval prior to us engaging any Consultant:
      1. a cost estimate;
      2. an estimated timeframe for the Consultant to deliver services to you or during which the Consultant will be engaged to provide services for you; and
      3. any commission, referral fee, remuneration or other benefit that we will receive from the Consultant and the basis on which they are calculated.
   2. You must reimburse us upon demand for all costs and expenses that we incur including, but not limited to, the fees, costs and expenses charged by the Consultants engaged by us.
8. Warranties and liability
   1. We do not warrant that:
      1. the software services (if any) provided under this Agreement will be uninterrupted or error free;
      2. the software services will meet your requirements, other than as expressly set out in this Agreement.
   2. Except as expressly provided to the contrary in this Agreement, all warranties whether express, implied, statutory or otherwise, relating in any way to the subject matter of this Agreement, are excluded. Where any statute implies any term into this Agreement, and that statute avoids or prohibits provisions in a contract excluding or modifying the application of or liability under such a term, then the term will be taken to be included in this Agreement. However, our liability for any breach of the term will, if permitted by that statute, be limited, at our option, to the resupply of the Services again or payment of the cost of having the Services supplied again.
   3. We will not be liable to you or any other Person for:
      1. any cost, loss or liability (including loss of profit or other consequential damage) arising from our supply or failure or delay in supplying the Services;
      2. the content, context or confidentiality of any communications made using the service;
      3. loss or damage caused by third party software applications forming part of any software service;
      4. any costs, claims, loss or damage of any kind resulting from the fraudulent, negligent or otherwise unlawful behaviour that you may undertake using any software service; and
      5. any costs, claims loss or damage arising from any information, data or other material provided to us or on behalf of you.
   4. You accept responsibility for all information and material you provide as part of our delivery of the Services to you, and indemnify us and hold us harmless against any liability in relation thereto.
   5. You undertake that You shall not publish or issue any information which is illegal or defamatory.
   6. You acknowledge that we do not vet or approve any information or material available through the Services that we provide to you and that we do not accept any liability. To the full extent permitted by law You access and use such information and materials at Your own risk.
   7. You indemnify us against all costs, expenses, loss or liability that we may suffer (directly or indirectly) resulting from:
      1. Your breach of this Agreement;
      2. Any unlawful or negligent act or omission made by you;
      3. Your use or misuse of any software service or product provided to you by us;
      4. the use or misuse of any software service provided to you by us by any person using Your account; and
      5. publication of defamatory, offensive or otherwise unlawful material on any website or platform forming part of the Services provided to you by us.
   8. Notwithstanding 10.1. we provide a ‘Warranty Period’ for all software that me we may develop for you, during which time we will provide support services relating specifically to the development and delivery of the software.
   9. We will endeavour to ensure the software provided retains all its functionality and conforms to the specifications during a warranty period of 30 days from the delivery date (if not otherwise specified, the delivery date will be defined as the date that the software is first used by the you or in the case of a website placed into public view, whichever is the earliest).
   10. We also agree to provide, at no additional cost to you, reasonable technical support during the 30-day warranty period to maintain the software and correct any reported defects. Such maintenance and updates may include correcting any remaining errors or any failure of the software to conform to the specifications, but support and assistance shall not be provided for the development of enhancements or variations for the software is deemed out of scope of our original scope of engagement.
   11. After the 30-day warranty period we will provide all support at time spent in accordance with our schedule of hourly rates.
   12. No warranty is offered on third party software and components that may make up part of the solution developed by us and provided to you. These components may have separate warranties and you should make sure you are familiar with them (see clause 11).
   13. During production and the warranty period we require full and exclusive access to the hosting/production environments and source code. We may provide ‘read only’ access to source code during development, but all warranties will be void if there is any unapproved ‘write’ access to the source code or hosting/production environments.
9. Third party software and components
   1. When advising on or developing solutions for you we will often consider the use/inclusion of third party software and components. In some cases this will involve third party commercial software which may include open source and free components. In all cases these components come with their own licenses and warranty arrangements.
   2. If you have specific licensing requirements then you must make us aware of them prior to commencement as this may impact on the choice of these components.
   3. We are unable to provide any warranty on third party components. Thus, faults resulting from all third-party components must be fixed at the client’s cost regardless of whether the project is within its warranty period. If you are not willing to accept this arrangement, then you must advise us prior to commencement as this will impact on any estimated fees.
10. Confidentiality and privacy
    Any information acquired by us in the course of our engagement and in performing the Services, including any information relating to your affairs whether or not it belongs to you or not or is provided by you or not, is subject to strict confidentiality requirements. Information will not be disclosed by us to other parties except as per above or as required or allowed for by law or, or with your express consent.
11. Non-solicitation
    1. Neither party may, without the prior express written consent of the other party, employ or engage the services of the other party’s representatives (including but not limited to any officers, employees or independent contractors) during their participation in the engagement.
    2. In the event you wish to consider employing, sub-contracting or otherwise engaging any of our representatives in any capacity, either directly or indirectly, during the engagement, you acknowledge and agree that any such arrangements will give rise to an obligation that you pay a Recruitment Fee, being the greater of either:
       1. 150 hours (at the staff members most recent rate); or
       2. 30% of the salary offered by you to the staff member.
    3. The Recruitment Fee is subject to GST and full payment is required before the transfer will be permitted.
    4. This right under this provision to receive a Recruitment Fee is reserved for a period extending no longer than 24 weeks past the last date of engagement between the Parties.
12. Attribution and promotion
    1. We reserve the right to refer to you and the work completed by us on our website inclusive of your name and website URL and images of the website/ software in any promotional materials about us.
    2. We will always seek permission in writing in line with clause 12 when undertaking the above.
13. Termination
    1. Either you or we may terminate this Agreement at any time by giving the other at least fourteen (14) days written notice.
    2. In addition to the right of termination under clause 15.1 (and without limitation to that right of termination) we may terminate this Agreement with immediate effect if:
       1. you do not comply with any obligation arising under this Agreement;
       2. you do not provide us with information or instructions that we request you to provide to us, within a reasonable period of time after we have made a request for information or instructions from you; or
       3. we consider that we would or might breach a code of ethics or conduct rules that apply to us by continuing to act for you.
    3. If either of us terminates this Agreement, you will be liable and obliged to pay us for all work we have done, all support services we have provided and all expenses we have incurred up to the date of termination and the provisions of this Agreement relating to the calculation and payment for such services and items shall survive that termination and still apply in respect of such services and items.
14. Variation
    This Agreement may only be varied, supplemented or replaced by a document in writing and duly executed by both parties.
15. Governing law
    This Agreement is governed by and is to be construed in accordance with the laws applicable in Western Australia. Each party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts of Western Australia.
16. Severance
    1. If any provision in this Agreement is held to be void, invalid, illegal or otherwise unenforceable, the parties hereby agree that any such provision shall be automatically read down as narrowly as possible and to the minimum extent necessary to allow it to then be valid and enforceable at law.
    2. f it is not possible to read down a provision (in whole or in part), that provision (or that part of that provision) is severed from this Agreement without affecting the validity or enforceability of the remainder of that provision or the other provisions in this Agreement, as is applicable.
17. Mediation
    1. In the event there is any dispute between the parties to this Agreement relating to the interpretation or performance of any of the provisions or obligations appearing in this Agreement, written notice shall be given by any Party wishing to raise any issue of dispute to the other party and representatives from each Party shall then meet in a face to face mediation meeting, to be arranged within 7 business days of the written notification of the dispute being given, to attempt to resolve the issue(s) in dispute on a bona fide basis.
    2. In the event that the Parties are unable to resolve the issue(s) in dispute at the mediation meeting above, the Parties shall then be free to elect to pursue any legal rights by reference to any Court or other authority.
    3. This provision shall survive termination of this Agreement.
18. Entire understanding
    1. This Agreement embodies the entire understanding and agreement between the Parties as to the subject matter of this Agreement.
    2. All previous negotiations, understandings, representations, warranties, memoranda or commitments in relation to, or in any way affecting, the subject matter of this Agreement are merged in and superseded by this Agreement.