Terms & Conditions
SERVICES
1. Provision of the Services: Qualiticks Pty Ltd (QTX) agrees to provide Services to the Customer on these Terms and Conditions and as stated in the Order and the SOW (if any) from the Commencement Date up to and including the Expiry Date, or if no Expiry Date is stated in the Order until the Services have been completed.
2. Statement of Work: If a SOW is not included in an Order, the Services will be as stated in the Order (and any references to the SOW in the Agreement will be read as references to the Order).
3. Representatives: The Customer’s Project Lead and QTX’s Customer Engagement Manager will be the primary points of contact between the parties for all matters relating to the Services and the Agreement.
4. Customer to provide necessary assistance to QTX: The Customer will, within the time stated in the Agreement or (if no time is stated) within a reasonable time, cooperate with QTX, provide QTX with accurate and complete information when requested, provide such assistance and access as QTX may reasonably request, and fulfil its responsibilities as set forth in this Agreement.
5. Safety, conduct and security: If applicable, while either the Customer or QTX is on the other’s premises, they will comply (and will ensure their officers, agents and personnel comply) with the reasonable rules and regulations regarding safety, conduct, and security made known to them.
6. Notices: A notice, consent, approval or other communication under this Agreement is only effective if it is in writing, signed by or on behalf of the party giving it, and is received in full and legible form at the addressee’s address or email address stated in the Order. It is regarded as received at the time and on the day it is actually received, but if it is received on a day that is not a Business Day or after 5.00 pm on a Business Day, it is regarded as received at 9.00 am on the following Business Day.
7. No waiver: No leniency, indulgence or extension of time granted by QTX to the Customer will prejudice any of QTX's rights in any way or constitute a waiver of any of QTX's rights.
8. Payment: Unless otherwise agreed in writing or specified in the Order or SOW, payment must be made by the Customer within 7, 14, or 30 days from the date of invoice, in accordance with the payment terms stated in the applicable Order or SOW. Services will be invoiced at the end of each month and/or upon completion, or as otherwise prescribed. QTX may suspend the performance of the Services if the Customer is late in making any payment.
9. Use of Block Time: a) Block Time is valid for 12 months from the first date of use ("Start Date"). Any unused Block Time will expire at the end of this period unless additional Block Time is purchased before expiry. b) If additional Block Time is purchased before expiry, any remaining unused time will roll over for a new 12-month period starting on the new purchase date. c) Block Time is measured in hours, with a minimum booking of 4 hours per engagement. A full day equals 8 hours. Additional time is billed in 2-hour increments. d) Block Time is non-refundable and may only be used for Services outlined in the Order or SOW unless otherwise agreed in writing by QTX.
10. Time & Materials Days: Time & Materials Days are equivalent to 8 working hours. Where a full day is not worked, a minimum of 4 hours will be charged, with additional time billed in 2-hour increments.
11. Overtime: Standard business hours are 8:00am to 5:00pm, Monday to Friday. Work outside these hours will attract a 50% loading on weekdays and 100% loading on weekends and public holidays. QTX will use reasonable efforts to obtain prior written approval from the Customer, unless the work is urgent or necessary to avoid disruption.
12. Products: Any Products supplied may be sourced in a different currency to the Order. Prices remain valid for 30 days from the date of Order. QTX may adjust the price after that by written notice.
13. Taxes, duties, government charges, GST: Prices exclude taxes, duties, and government charges. The Customer must pay any such charges imposed after the date of this Agreement. QTX will issue a valid tax invoice where GST is payable.
14. Interest: Late payments incur interest at 5% per annum from the due date until paid in full.
15. Warranties: QTX warrants that the Services will be performed with due care and skill and, unless otherwise agreed in writing, will be free from material defects for a period of 30 days from the date of delivery of the relevant Services (“Warranty Period”). During the Warranty Period, if the Customer notifies QTX in writing of any defect in the Services that arises due to a breach of this warranty, QTX will, at its option and at no additional cost to the Customer, re-perform the affected Services or provide a refund for the portion of the Price paid for the defective Services.
This warranty does not apply to defects or issues arising from:
misuse, unauthorised modification, or use of the Services contrary to instructions;
use in combination with systems not approved by QTX;
external causes beyond QTX’s’ control including acts of God, power surges, or accidents.
Nothing in this Agreement excludes, restricts or modifies any rights or remedies or any guarantees, warranties or conditions that are implied or imposed by the Australian Consumer Law or any other applicable legislation which cannot be lawfully excluded or limited.
The process for reporting and rectifying defects during the Warranty Period is outlined in Clause 20.
16. Notice of schedule changes: Five days’ notice is required for schedule changes affecting QTX’s resources. If less than five days’ notice is provided, additional charges may be incurred. In the event of this occurrence, QTX will exercise best efforts to reschedule resources and if not able to redeploy, QTX will alert the Customer's Project Manager as soon as possible to arrange a Change Request for the lost time.
17. Change Requests: The Customer may agree a change request with QTX (“Change Request”), in which case QTX will document the Change Request and issue it to the Customer. Upon signature by the Customer or following a period of 7 days without the Customer disputing the Change Request, the Change Request will be deemed to be a part of this Agreement and it will amend the relevant terms and conditions of this Agreement in the manner set out in the Change Request.
18. Delays: QTX will use its reasonable endeavours to deliver the Services to the Customer by the date specified in this Agreement, or such other date as is agreed between the parties, but will not be liable for any delays in delivery caused by the Customer (or its officers, agents, employees or contractors) or any other matter beyond QTX’s reasonable control.
19. Deemed Acceptance: Unless the Customer gives QTX written notice of any part of the Services which is alleged by the Customer to be otherwise than in accordance with this Agreement, within 7 days of the date of delivery of that part, the Customer will be deemed to have accepted that part on delivery. Where the Customer puts a part of the Services to commercial use, the Customer will be deemed to have accepted that part on the first day of such use, whether or not a notice of the kind contemplated by this clause is previously or subsequently given to QTX.
20. Defects: Subject to clause 21, defects in the Services reported to QTX within 30 days of delivery of the relevant Services will be rectified by QTX at no charge to the Customer. Any defects reported beyond 30 days of delivery will be considered a Change Request and will be invoiced to the Customer under clause 16. The Customer agrees to pay any such invoice within the time required by this Agreement.
21. QTX does not warrant, and will not provide any warranty services for or be required to repair, any defects in the Services which are caused by:
a) external causes including natural disaster, fire, accident, vandalism, water, lightning, power surge or spike or any cause outside the reasonable control of QTX;
b) the performance of maintenance or attempted repair by persons other than QTX or as authorised by QTX;
c) neglect or misuse by the Customer or its officers, agents, employees or contractors;
d) changes made to the Deliverables created by performance of the Services or to the operating environment; and
e) any configuration or reconfiguration by the Customer of the Products or other equipment with which the Products interface.
22. Risk: Risk of loss, theft, damage, deterioration or destruction of Products passes to the Customer upon the earlier of:
a) delivery to the Customer;
b) the taking of possession by the Customer; and
c) the delivery to any carrier contracted by QTX for delivery to the Customer.
23. Confidentiality: QTX and the Customer agree that they will always keep strictly confidential any confidential information that is disclosed or provided by one party to the other.
24. Intellectual Property Rights: The Customer acknowledges that, unless otherwise agreed in writing, all intellectual property rights attaching to the Products or arising out of the provision of the Services are and will remain the property of QTX (or its supplier, where such rights are owned by that supplier).
25. Software licence: Any software will be licensed to the Customer on the terms of the relevant licence agreement provided with the Product or as otherwise agreed between QTX and the Customer in writing. Any rights to be conferred on the Customer under the licence agreement will only commence on payment to QTX of all fees or charges payable under this Agreement in connection with those rights.
26. No Consequential Loss: QTX will not be liable to the Customer for any indirect or consequential loss or damages including loss of profits, revenue, data or use or any economic loss or special loss arising out of or in relation to the supply of the Services, even if QTX knew or should have known of the possibility of such loss or damage and regardless of whether damages are claimed in contract, tort (including negligence) or under statute.
27. Force Majeure: Neither party shall be liable under this Agreement for delays or failures to perform the Services or this Agreement due to causes beyond its reasonable control. Such delays include, but are not limited to, fire, natural catastrophe, new or changed government legislation, acts, orders, or regulation, strikes or labour difficulties, pandemics, earthquakes, terrorism, cyclones to the extent not occasioned by the fault or negligence of the delayed party. Any such excuse for delay shall last only as long as the event remains beyond the reasonable control of the delayed party. The delayed party must use its best efforts to minimise the delays caused by any such event. If the force majeure event continues for more than thirty (30) calendar days, then either party may terminate the Agreement upon written notice to the other party.
28. Termination by either party: Without limiting any other termination right under these Terms and Conditions, a party may terminate this Agreement for cause (i) upon 30 days written notice to the other party of a material breach, if such breach remains uncured at the end of that 30 day period, or (ii) by notice in writing to the other party, if the other party is bankrupt or insolvent or becomes the subject of a petition in bankruptcy or other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
29. Termination by QTX:
29.1 Where the customer:
a) makes default in any payment or breaches any provision of this Agreement;
b) becomes unable to pay its debts as and when they fall due; or
c) commits an act of bankruptcy or, being a company, enters into liquidation or provisional liquidation (whether voluntary or involuntary), or compounds with its creditors generally, or has a receiver, receiver and manager or administrator appointed over all or part of its assets, or passes a resolution for winding up, or a petition is presented for its winding-up —
29.2 QTX may, without prejudice to any of its other rights or remedies under this Agreement or otherwise, by notice to the Customer:
a) suspend the further supply of Services or Products and require payment in advance for future supply;
b) recover possession of any Products for which payment has not been made;
c) terminate all or any Orders for Services or Products which have been accepted by QTX;
d) claim immediate payment of all monies due by the Customer in respect of all Services and/or Products, which will then be immediately due and payable, notwithstanding the due date(s) for payment or any agreed payment terms; and/or
e) continue to enforce its rights and recover from the Customer all amounts owing as and when they fall due.
30. Consequences of Termination: Upon termination of this Agreement by either party, all amounts owed by the Customer under this Agreement will become due and payable. In no event will any termination relieve the Customer of the obligation to pay all fees payable to QTX for the period prior to the effective date of termination.
31. Dispute Resolution: If any dispute arises out of or in connection with this Agreement:
(a) the party raising the dispute must notify the other party in writing that a dispute exists, with sufficient detail to enable the dispute to be considered (“Dispute Notice”); and
(b) the parties must then meet to discuss and attempt to resolve the dispute.
32. If a dispute is not resolved within 10 Business Days after the date of the Dispute Notice, or such other time as is agreed between the parties in writing, then either party may notify the other party that it wishes to refer the dispute to each party’s senior executives to resolve the dispute. If such a notice is given, then each party must nominate a senior executive to seek to resolve the dispute. The meeting between the parties’ senior executives must occur within 15 Business Days of the Dispute Notice or such other time as is agreed between the parties in writing. If a dispute is not resolved within 5 Business Days of the meeting of the parties’ senior executives or such other time as is agreed between the parties in writing, then either party may refer the dispute to mediation by notice in writing to the other party (“Mediation Notice”).
33. Such mediation is to be conducted by a mediator who is independent of the parties and appointed by agreement of the parties or, failing agreement within 7 days of the Mediation Notice, by a person appointed by the Chair of Resolution Institute, or the Chair’s designated representative. The Resolution Institute Mediation Rules shall apply to the mediation. It is a condition precedent to the right of either party to commence arbitration or litigation other than for interlocutory relief that it has first offered to submit the dispute to mediation.
34. Entire Agreement: This Agreement constitutes the entire agreement between the parties as it relates to the subject matter and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning or relating to the same.
35. No Waiver: Except as otherwise provided in this Agreement, no modification, amendment, or waiver of any provision of this Agreement will be effective unless in writing and signed by both parties.
36. Order of Precedence: To the extent of any conflict or inconsistency between the provisions of any Order, the Terms and Conditions or any other part of this Agreement, then the terms of the Order, (including any incorporated SOW), will prevail over these Terms and Conditions and any other part of this Agreement.
37. Customer’s terms will not apply: Despite any clause to the contrary, no terms or conditions stated in any purchase order, remittance advice, acceptance certificate payment system, other order documentation or any other document that the Customer provides to QTX (excluding an Order) will be incorporated into or form any part of this Agreement, and any such terms or conditions will be null and void.
38. Amendments to be in writing: Any variation to the Agreement must be agreed in writing between the parties.
39. Customer warranties: The Customer represents and warrants that (i) it has the legal authority to enter into this Agreement, and (ii) it will use the Services in accordance with the terms and conditions set forth in this Agreement and in compliance with all applicable laws, rules and regulations.
40. Governing Law: This Agreement will be governed by, and construed in accordance with, the law in force in New South Wales, and the parties submit to the jurisdiction of the courts of New South Wales.
41. Disclaimer:
EXCEPT AS EXPRESSLY PROVIDED IN CLAUSE 15 OR REQUIRED BY LAW, QTX MAKES NO OTHER WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, ORAL OR WRITTEN, OR OTHERWISE, AND QTX DISCLAIMS ALL IMPLIED WARRANTIES AND CONDITIONS, INCLUDING, TO THE MAXIMUM EXTENT PERMITTED BY ALL APPLICABLE LAW, ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, OR ANY WARRANTY WITH RESPECT TO THE QUALITY, PERFORMANCE, ACCURACY OR FUNCTIONALITY OF THE SERVICES OR THAT THE SERVICES ARE OR WILL BE ERROR FREE OR WILL ACCOMPLISH ANY PARTICULAR RESULT. NOTHING IN THIS AGREEMENT EXCLUDES, RESTRICTS OR MODIFIES ANY RIGHT OR REMEDY, OR GUARANTEE, WARRANTY OR OTHER TERM OR CONDITION, IMPLIED OR IMPOSED BY ANY LEGISLATION WHICH CANNOT LAWFULLY BE EXCLUDED OR LIMITED BY QTX UNDER THIS AGREEMENT.
42. Definitions
“Agreement” means the agreement between the parties as contained within the Order, the SOW (if one is provided to the Customer) and these Terms and Conditions).
“Block Time” is a predetermined period of time, measured in hours and days, which may be purchased by the Customer in order to obtain certain Services by QTX, as set out in the Order and/or SOW (if any). When using Block Time, days are equivalent to 8 working hours, and Block Time must be consumed in increments of 4 hours minimum – for any period of time where QTX is required to provide the Services for less than 2 hours, QTX will invoice the Customer for 4 hours of Services.
"Business Day” means a day which is not a public holiday or bank or other holiday in New South Wales.
“Commencement Date” means the date an Order commences, as stated in that Order.
“Confidential Information” means in relation to the Disclosing Party, information that:
(i) is by its nature confidential;
(ii) is designated by the Disclosing Party as confidential; or
(iii) the Receiving Party knows or ought to know is confidential,
and includes:
(iv) information comprised in or relating to any Intellectual Property Rights of the Party;
(iv) information relating to the financial position of the Disclosing Party, and in particular includes information relating to the assets or liabilities of the Disclosing Party and any other matter that does or may affect the position or reputation of the Disclosing Party;
(v) information relating to the internal management and structure of the Disclosing Party, or the personnel, policies and strategies of the Disclosing Party;
(vi) information of the Disclosing Party to which the Receiving Party has access, other than information referred to in (iv), (v) and (vi), that has any actual or potential commercial value to the Disclosing Party or to the person or corporation which supplied that information;
(vii) where the Customer is the Disclosing Party, information relating to the policies, strategies, practices and procedures of the Disclosing Party in the Receiving Party’s possession; and
(viii) information in the Receiving Party’s possession relating to the Disclosing Party’s clients or suppliers,
and like information.
“Deliverable” means any work product, deliverables, programs, interfaces, modifications, configurations, reports, or documentation developed or delivered by QTX in the performance of the Services.
“Disclosing Party” is the party disclosing Confidential Information to the Receiving Party.
“Order” means the Order form specifying the Services to be provided under this Agreement, which is entered into between QTX and the Customer, and includes any SOW, addenda, and documents referenced in the Order. An Order is not entered into by the parties until QTX provides written confirmation to the Customer (which may include a copy of the signed Order) that it has accepted the Order.
"Price” means the amount payable or paid to QTX for the performance of the Services.
"Products” means any goods, equipment, machinery, hardware or physical items supplied by QTX as part of the Services.
“Receiving Party” is the party receiving Confidential Information from the Disclosing Party.
“Services” means fee-based migration, implementation, training or consulting, or any other services that QTX will perform as described in an Order or the SOW, and includes the supply of any Products.
“SOW” means a statement of work describing the Services to be provided by QTX to the Customer.
“Terms and Conditions” means these standard terms and conditions.