- SolarQuip offers to undertake the Training Services specified in the Course Outline and Estimate and the parties agree that the Training Services and the relationship between the parties is governed by the terms and conditions contained herein.
- The Course Outline and Estimate is valid for a period of thirty (30) days commencing the day after SolarQuip gives the Agreement to the Customer.
- Unless agreed by the Customer in its sole discretion, SolarQuip agrees and undertakes not to use any pre-existing templates, documentation or data in the creation of the Training Services.
2. Customer’s Obligations and Acknowledgements
- The Customer agrees:
- Make themselves available as reasonably required by SolarQuip to enable the Project to be completed and implemented in a timely and effective manner;
- To treat SolarQuip, its employees and agents with goodwill, and in a courteous and respectful manner and agrees to refrain from using any abusive, defamatory or otherwise offensive language while in communication with SolarQuip;
- Provide SolarQuip with all information, images, facilities and services reasonably required by SolarQuip to enable SolarQuip to undertake the Training Services effectively and agrees to grant SolarQuip access to the Customers computer equipment and telecommunications where reasonably required;
- Ensure that all material provided to SolarQuip conforms to all industry codes and standards, applicable laws including but not limited to advertising, trade practices, industry, copyright and intellectual property;
- Meet the Payment Terms specified in the Course Outline and Estimate within 7 days of receiving an invoice from SolarQuip;
- The Training Services may require purchase of Third Party Products. The Customer authorises and directs SolarQuip to pay all reasonable royalties or licence fees associated with the use of a Third Party Products and which are necessary for the completion of the Training Services and the Customer agrees to reimburse SolarQuip on demand.
- The Customer agrees and acknowledges:
- That figures provided in the Course Outline and Estimate are minimum estimates only and that the actual cost of the project may exceed that stated therein.
- That the Course Outline and Estimate do not include costs of any modifications and/or changes to the Core Development Services or Additional Services. Where the Customer modifies or adds to the Core Development Services or Additional Services, SolarQuip reserves the right to charge fees any service or feature not contained in the original Course Outline and Estimate.
- That from the time of Launch, SolarQuip is not liable and will not be responsible for Backing Up Data contained in the Developed Product, and that Backing Up the Developed Product post Launch is the sole responsibility of the Customer and SolarQuip shall not be held liable for any losses occasioned to the Customer by failure to Backup Data or the Developed Product;
- That in the event the Customer fails to follow the recommendations and advice of SolarQuip, that the Customer is solely liable for the any losses resulting from the failure to follow SolarQuip advice and/or recommendations;
- That failure to take out Maintenance may, after Launch, result in the Developed Product becoming hacked or otherwise improperly accessed, and that
- That the government may enact laws and levy taxes and tariffs affecting Internet Electronic Commerce. The Customer agrees that it is solely responsible for complying with such laws and taxes.
3. Core Development Services, Additional Services and Modifications to Services
- Under the terms of this Agreement, SolarQuip agrees to provide the Customer the Core Development Services and Additional Services for the Project Type specified in the Course Outline and Estimate.
- If, after signing this agreement, the Customer wishes to reduce or otherwise modify the Project Type, Core Development Service or Additional Service, the Customer shall notify SolarQuip of its intent to modify requirements following which SolarQuip shall immediately suspend work on the Training Services.
- Within 7 days of advising SolarQuip of its intent to modify requirements, the Customer shall submit to SolarQuip a written document describing the proposed modifications and SolarQuip shall within a reasonable time submit to the Customer an Updated Development Proposal and Estimate.
- Notwithstanding any modification made in accordance with clause 2 (c), the Customer remains liable to pay the full estimated amount for the Services as if the modification never occurred in addition to any other fees detailed in the Updated Development Proposal and Estimate. SolarQuip at its sole discretion, may adjust or amend costs payable under the original Development Proposal and Estimate.
- After the work has been commenced, modification to the Project Type or any of the Core Development Service or Additional Services will be treated as a change request. SolarQuip reserve the right to charge for such modifications and for any additional work arising as a result of such changes.
4. Estimated Milestone Dates And Payment Terms
- Figures contained in the Course Outline and Estimate are a minimum estimate only and are subject to change.
- Additional expenses for Third Party Products will be charged at cost to the Customer and invoiced in accordance with Payment Terms.
- The Customer agrees to pay SolarQuip the Total Minimum Estimated Cost stated in item 3 the Course Outline and Estimate. In the event that the total actual cost of the Training Services exceeds the amount stated in the Course Outline and Estimate, the Customer agrees within 7 days of receipt of invoice, to pay SolarQuip the difference between the Course Outline and Estimate and actual development cost of the services provided.
- Subject to the following terms, the Customer agrees to pay the Total Minimum Estimated Cost (plus any additional actual development costs) in accordance with Payment Terms set out in item 3 of the Course Outline and Estimate. The Customer acknowledges and agrees:
- Where Progress Payment Terms is elected –that SolarQuip is under no obligation to perform any work until the initial 25% deposit is received cleared from the Customer and that SolarQuip may cease or suspend work where payments are not paid in accordance with the Progress Payment Terms. The Customer further acknowledges that final payment must be received cleared prior to Launch.
- Where Weekly Payment Terms is elected – that from the Project Commencement Date the Customer must meet the Weekly Payment Terms for the Term and for the amount stated therein. The Customer further acknowledges that all outstanding payments must be received cleared prior to Launch.
(d) In the event that the Customer fails to meet Payment Terms, SolarQuip reserves the right to cease work until all outstanding accounts are paid in full. The Customer acknowledges that in the event that any account remains outstanding SolarQuip reserves the right to charge interest on the unpaid amount at the current bank interest rate.
(e) Estimated Launch Date: SolarQuip aims to perform the Services in an efficient and timely manner. The Customer acknowledges that the Estimated Launch Date specified out in the Course Outline and Estimate is an estimate only and is subject to change. The factors that affect the Estimated Launch Date include, but are not limited to whether:
- The Customer promptly and efficiently responds to requests for information or clarification of specifications;
- The Customer modifies, deletes or substitutes the Core Development Services or Additional Services and whether work already undertaken by SolarQuip will need to be revised in light of the modification, deletion or substitution and the complexity of such modifications, deletions or substitutions;
- The level of cooperation the Customer provides SolarQuip, and the level of cooperation of other persons with whom SolarQuip deals with on behalf of the Customer (including but not limited to the Customer’s staff, agents or Third Party Service providers);
- Situations beyond our control.
(f) Where delay in Launch is due to Customer fault, SolarQuip reserves the right to charge overtime rates.
- Project Completion–Subject to the terms of this clause clause 4 (g) (i) – (ii) the Core Development Services will be deemed complete when SolarQuip has Launched the Developed Product and the Customer has signed a Project Completion Acknowledgement. The Customer acknowledges and agrees that:
- Within 14 days of Launch, the Customer will review the Developed Product and conduct their own tests to check if they are satisfied that the Developed Product meets the Project Scope and if so satisfied, return to SolarQuip a signed Project Completion Acknowledgement.
- Where the Customer does not undertake its own review of the Developed Product within the specified time, or fails to return the Project Completion Acknowledgement, the Customer will on the 14th day after Launch be deemed to have accepted that the Developed Product accords with the Project Scope and that the Core Development Service is complete.
5. Maintenance and Training
- Where the Customer elects for Training to be provided, and unless otherwise agreed between the parties, SolarQuip shall provide training within 14 days of receiving full and final payment.
- Where, in the sole opinion of SolarQuip, SolarQuip considers the Customer to have become abusive, defamatory or otherwise offensive towards SolarQuip, its employees or agents during training, the Customer acknowledges and agrees that SolarQuip may immediately terminate training and in such instance the Customer shall forfeit all fees paid for training under this agreement and shall have no recourse against SolarQuip for losses arising as a result.
- Where the Customer elects for Maintenance Services to be provided, it shall be in accordance with the SolarQuip Maintenance Service Agreement.
6. Intellectual Property Rights
- Subject to sub-clause 6 (b) Intellectual Property rights in the Developed Product shall vest in the Customer when the full and final cleared payment for the Core Services is received by SolarQuip.
- Notwithstanding sub-clause 6 (a), the Customer acknowledges that there is no assignment of intellectual property rights in any Pre-Existing Material which is incorporated into or which has been used in the course of the Training Services vest absolutely and always with SolarQuip.
- SolarQuip undertakes to obtain all necessary permissions, authorisations and licenses and consents in relation to the use and incorporation of third party materials in the Training Services (excluding that material provided by the Customer);
- The Customer represents to SolarQuip and guarantees that any element of text, graphic, photo, designs, sound, trademark or other artwork furnished to SolarQuip for inclusion in the Project are owned by the Customer or that the Customer has permission from the rightful owner to use each of these elements, will hold harmless and indemnify SolarQuip and its subcontractors from any claim, suit, arising from the use of such elements furnished on SolarQuip.
- Where the infringement of Intellectual Property rights is determined or agreed to be caused either directly or indirectly by the actions of the Customer, SolarQuip may at its discretion agree to assist the Customer in rectifying the infringement. The Customer agrees in such event to pay to SolarQuip, SolarQuip cost and expenses incurred in attending to the above.
7. Design/Development Credit
- The Customer agrees that SolarQuip may, upon completion of the project, include a small credit on the Customers Developed Product, which is usually located at the bottom and typically consists of a small line of text being a URL hyper text link or small logo URL image link to SolarQuip Website for promotional purposes only. The Customer also agrees to promptly remove the same on request.
- The Customer acknowledges that any material placed on the Customer’s Developed Product in accordance with clause 7 (a) remains at all times the intellectual property of SolarQuip.
8. Liability and Indemnity
- SolarQuip makes no warranty of any kind, whether expressed or implied, with regard to any Third Party Product suitability for use on the Developed Product.
- SolarQuip accepts no liability whatsoever for any edits or changes made to the Developed Product by the Customer or any third party acting under the direction of the Customer (henceforth “unilateral changes”) or arising from the Customer’s failure to Backup Data and/or the Developed Product after Launch.
- Subject to the requirements of the Australian Consumer Law, except in relation to liability for personal injury (including death), property damage (excluding loss of data) or any infringement of confidentiality or intellectual property rights, the liability of SolarQuip in damages (including special, indirect or consequential damages, which damages will be deemed to include loss of revenue, loss of profit and opportunity loss) in respect of any act or omission of SolarQuip in connection with its obligations under this agreement will not exceed the amount paid by the Customer under the Course Outline and Estimate, even if SolarQuip has been advised by the Customer as to the possibility of losses being incurred.
- The Customer hereby unconditionally and irrevocably accepts all risks (whether foreseen or unforseen) associated with or arising from the Customer’s failure to meet its obligations under this agreement (including but not limited to those relating to Backup), the publication of and code in the Developed Product, any unilateral changes and the use of Third Party Products, and assumes responsibility for all losses, costs, and damages the Customer may incur as a result whether or not losses, costs or damages are caused by the Customer’s own action or inaction, the action or inaction of others or the negligence or otherwise of SolarQuip, or its directors, staff, associates or contractors. The Customer hereby releases, discharges and covenants not to sue SolarQuip, its directors, staff, associates and contractors for any liability or loss caused or alleged to be caused either directly or indirectly from publication of or code in the Developed Product, loss of Data due to failure to Backup, unilateral changes and the use of Third Party Products.
- To the extent permitted by law, the Customer agrees that it shall defend, indemnify, save and hold SolarQuip harmless from any and all demands, liabilities, losses, costs and claims, including reasonable attorney’s fees associated with the Training Services. This includes liabilities asserted against the SolarQuip, it’s subcontractors, it’s agents, its clients, servants, officers and employees, that may arise or result from any service provided or performed or agreed to be performed or any product sold by the Customer, its agents, employee or assigns.
9. Breach and Termination
- Either party may terminate this Agreement with thirty (30) days prior notice if a party:
- Has a receiver, manager, receiver and manager, administrator, liquidator (including provisional liquidator), statutory manager or similar person appointed (whether voluntarily, involuntarily, by a Court or by any other entity) concerning any of its property, assets or business affairs; or
- Commits an Act of Bankruptcy or has a petition for his or her bankruptcy lodged with the relevant authorities, voluntarily or otherwise; or
- Assigns or disposes of any of its property, assets or business affairs for the benefit of its creditors or otherwise disposes of a substantial part of its assets, operations or business, or stops carrying on business.
- In addition to the rights of termination set out in clause 9 (a) SolarQuip may terminate this Agreement with seven (7) days prior notice where the Customer is in breach of any of is obligations under this Agreement and fails to remedy the breach within that time period. In the event that SolarQuip terminates this Agreement due to the Customer’s failure to meet any Payment Term, the Total Minimum Estimated Cost plus any additional charges incurred in accordance with this Agreement becomes immediately due and payable and the Customer consents to the current bank interest rate being charged on all outstanding amounts up until the date full and final payment is received.
- If the Customer terminates this agreement under clause 9 (a) the Total Minimum Estimated Cost plus any additional charges incurred in accordance with this Agreement becomes immediately due and payable and the Customer consents to the current bank interest rate being charged on all outstanding amounts up until the date full and final payment is received.
- Where the Training Services is terminated by any party prior to Launch, Intellectual Property rights to all work developed up to the date of termination shall remain absolutely and forevermore with SolarQuip.
10. Third Party Property
Rights to any Third Party Property used by SolarQuip in the development of the Project are subject to that software’s own license terms and conditions of use and the Customer agrees to adhere to those terms and conditions. After Launch, SolarQuip is not required to maintain updates of Third Party Products and the Customer acknowledges it is their sole responsibility to ensure and pay for updates and new releases of Third Party Products associated with the Developed Product.
11. Right of Refusal
SolarQuip will not include in its designs, any text, images, audio or other content and/or data which it may deem to be immoral, offensive, defamatory, obscene and/or illegal. SolarQuip reserves the right to refuse to include submitted material without giving reason. Any designs, text, images, audio, data and/or content that SolarQuip does include, SolarQuip does so in good faith, and should it become aware that it is contrary to any of the terms and conditions of this Agreement, the Customer is obliged to allow SolarQuip to remove the contravention without hindrance and/or penalty. SolarQuip will not be held responsible for any such data and/or content, the Customer indemnifies SolarQuip for any claim brought against it by any third party.
12. Faults on Developed Product Post Launch
- Where Services supplied under this agreement cost less than $40, 000, our Services come with guarantees that cannot be excluded under the Australian Consumer Law and faults on Developed Product post Launch shall be remedied in accordance with those requirements;
- Where the Services supplied are over $40 000, the Customer agrees that the Services are not of the nature ordinarily acquired for domestic, household or personal use or consumption, and the provisions of clause 12 (c) – (d) apply.
- The SolarQuip 90 Day Warranty (“Warranty”) applies to Services of the nature specified in clause 12 (b). The Warranty commences the day following Launch and limited to the Core Development Services that have gone through the system testing phase. Ad-hoc, micro-improvements made may incur additional charges if they were not a part of initial core functionalities. The Warranty covers programming errors reported to SolarQuip within the 90 Day Warranty Period, but does not cover errors arising from or associated with server limitations, the use of Third Party Products or changes made to the Developed Product by the client, their employees or agents or resulting from the Customer’s failure to Backup Data or the Developed Product. Programming errors reported within the Warranty Period will be fixed at no additional charge to the Customer. The Customer acknowledges that SolarQuip will charge service fees for any errors arising or reported outside the Warranty Period or that arise in relation to the use of Third Party Products.
(d) The Customer will forfeit the right to warranty under clause 12 (c) if any third party for whatever reason accesses the Developed Product or the codes or where any payment to SolarQuip is outstanding at the time the fault is discovered.
13. Force Majeure
Neither party will be liable for or will be considered to be in breach of or in default under this agreement on account of, any delay or failure to perform as required by this Agreement as a result of any causes or conditions that are beyond such Party’s reasonable control and that such Party is unable to overcome through the exercise of commercially reasonable diligence. If any force majeure even occurs, the affected Party will give prompt written notice to the other party and will use commercially reasonable efforts to minimise the impact of the event.
The parties agree that the provisions of this agreement shall be binding upon and shall inure to the benefit of the parties hereto, their heirs, administrators, successors and assigns.
15. Severability and Waiver
(a) If any term, clause or provision hereof is held invalid or unenforceable by a Court of competent jurisdiction, such invalidity shall not affect the validity or operation of any other terms, clause or provision and such invalid term, clause or provision will be severed from this agreement.
(b) No waiver by either party of any default shall be deemed as a waiver of prior or subsequent default of the same of other provisions of this Agreement.
Any notice required or permitted to be given under this Agreement shall be in writing and shall be sent by registered mail to the last known business address of the recipient or by email marked “Attention Director” and sent to the email address agreed between the parties from time to time.
Until project completion, the Customer may not assign this agreement or the rights and obligations there under to any third party without the express written approval of SolarQuip. SolarQuip reserves the right to assign sub-contractors as needed to this Project to ensure on-time completion.
This Agreement may not be varied except by agreement in writing signed by both parties.
19. Entire Agreement
- This agreement constitutes the entire understanding of the parties and revokes and supersedes all prior agreements between the parties and is intended to be the final.
- Subject to rights existing under relevant legislation, any condition, representation or warranty which would otherwise be implied in this agreement is hereby excluded.
20. Relationship of Parties
In SolarQuip providing its services under this agreement it is deemed that it does so in the capacity of an independent contractor and nothing shall constitute an arrangement of employment, joint venture, or partnership.
21. Place of Contract of Contract and Governing Law
- The parties agree that the place of contract is Bellingen NSW 2450 Australia.
- This agreement shall be governed by and construed in accordance with the laws of New South Wales, Australia. The parties agree to submit to the jurisdiction of the Courts and Tribunals of that State and that the forum shall be situated closest to the place of contract.
(a) In this Agreement, unless otherwise stated:
(b) In this Agreement:
- words importing the singular include the plural and vice versa;
- words importing one gender include the other genders;
- a reference to any Party or other person includes that person’s successors and permitted assigns;
- a reference to a statute, ordinance or other legislation includes any amendment, replacement or re-enactment thereof for the time being in force and includes all regulations, by-laws and statutory instruments made thereunder;
- a reference to this or any other document includes a reference to that document as amended, supplemented, novated or replaced from time to time;
- a reference to a recital, clause or schedule is a reference to a recital, clause or schedule of this agreement;
- a reference to writing includes all means of reproducing words in a tangible and permanently visible form;
- a reference to time is a reference to time in the State of NSW Australia;
- a reference to a person includes a natural person, corporation, partnership, trust, estate, joint venture, sole proprietorship, government or governmental subdivision or agency, association, cooperative and any other legal or commercial entity or undertaking;
- where a Party comprises two or more persons any agreement or obligation to be performed or observed by that Party binds those persons jointly and each of them severally, and a reference to that Party is deemed to include a reference to any one or more of those persons;
- the headings in this agreement are not to affect its interpretation;
- the recitals and the schedules form part of this agreement; and
- a reference to “dollar” or “$” is a reference to Australian currency.