PlusOne Dynamics Consulting Limited (PoD) agrees to supply Goods and Services to the Buyer upon the following Terms and Conditions:
Definitions
1.1 The following words shall have the meanings specified:
Buyer - the company, person, business or entity named as the Buyer on the Order Form, or any agent or licensee of the Buyer Contract - the agreement between PoD and the Buyer as set out on the Order Form (including these Terms and Conditions). This Contract overrides any other agreement between PoD and the Buyer, and applies to all orders made after these Conditions have been sent, or otherwise brought to the notice of the Buyer.
Goods – all workshop materials, printed instructions, manuals, posters, creative and experimental work in hard copy and electronic form, or other materials supplied to the Buyer or any third party at the request of the Buyer.
PoD - PlusOne Dynamics Limited.
Order Form - PoD’s application or order form, or if there is no such form, PoD’s invoice.
Services – analysis services, sub-domain web hosting, consulting, training and or other services supplied to the Buyer or any third party at the request of the Buyer.
2. Quotations
2.1 Every quotation or estimate given by PoD:
(a) Must be checked by the Buyer to determine whether its instructions have been correctly interpreted and PoD shall not be liable for any misinterpretation of those instructions;
(b) Lapses if not accepted by the Buyer within 30 days of being given; is subject to withdrawal or amendment at any time by PoD prior to its acceptance by the Buyer;
(c) Relates to the particular specifications required by the Buyer and the Buyer will be charged for any additional work resulting from any alteration in those specifications.
3. Orders
3.1 Any experimental work ordered by the Buyer will be considered an order and charged for by PoD.
3.2 Unless otherwise specified in writing other intermediary material specifically required to complete an order will constitute an additional charge.
3.3 Documentation, dummy sub-domain site designs, images, sketches, submitted by PoD to the Buyer on a speculative basis shall remain the property of PoD. Unless otherwise agreed by PoD in writing, the Buyer shall not make any use of those materials or any idea obtained from those materials.
4. Supply by Buyer
4.1 The Buyer agrees that any materials, images, logos, printed copy, electronic copy or other items supplied by it to PoD must be of a commercially acceptable quality. PoD will not be liable for any deviation from a quotation or substandard work resulting from the Buyer’s provision of unacceptable items. The Buyer will be charged for any additional work required to supply commercially acceptable Goods or Services.
4.2 All items supplied by the Buyer to PoD shall be held at the risk of the Buyer and PoD will not be responsible for any insurance cover for such items.
4.3 PoD will be entitled to dispose of any items which are not collected by the Buyer within 12 months of delivery of the relevant Goods or the supply of the relevant Services. PoD may offset any proceeds arising from the disposal against the cost of storage and will not be liable to the Buyer for any loss relating to such disposal.
5. Electronic Storage & Material Duplication / Copying
5.1 Unless otherwise specified by PoD in writing, the Buyer shall have no right or title to any material stored by PoD by electronic means. PoD may agree, however, to duplicate or transfer electronic material stored by it to the Buyer at the Buyer’s cost.
5.2 Unless otherwise specified by the Buyer in writing, PoD shall be entitled to assume that all discs and other forms of electronic storage supplied to PoD by the Buyer are copies of the originals.
5.3 All materials supplied by PoD are copyrighted. The printing, copying and/or distribution of any materials supplied by, or generated by, PoD including, but not limited to: Proposals, NDAs, Contracts, Presentations, Brochures, Posters, Hand-outs, Fliers, Workshop / Seminar Material, Training Material, Images or Videos is strictly prohibited, unlawful and may lead to legal prosecution.
6. Payments
6.1 Subject to PoD Payment Terms and Conditions, every amount invoiced shall be paid in cleared funds to PoD, without any set off or deduction, within 7 days of date of invoice. In addition to invoicing the Buyer on completion, PoD may submit invoices for progress payments for any work carried out during periods of more than one month.
6.2 Where any Goods or Services are to be supplied to a licensee of the Buyer which is resident outside of Australia or New Zealand, such licensee must forward the amount invoiced by PoD by direct credit and in cleared funds to PoD’s Australian or New Zealand bank account (as notified to the licensee) before PoD will be obliged to supply the relevant Goods or Services to the licensee.
7. Action on Breach
7.1 If the Buyer breaches its Contract with PoD, then PoD may, without notice and without prejudice to other rights it may have at law or under this Contract, take all or any of the following steps:
(a) Retain monies paid and demand payment of all amounts due to PoD even if time of payment has not fallen;
(b) Require security for such obligations before further supplies are made to the Buyer, including requiring the Buyer to procure the personal guarantees of its directors and shareholders;
(c) Withhold deliveries of Goods or supply of Services ordered by the Buyer, or sell the Goods to a third party;
(d) Charge interest for late payment on the amount invoiced at 2% per month calculated on a daily basis from the date payment is due until full payment is actually made, compounding annually;
(e) Require the Buyer to pay all expenses and legal costs incurred or suffered by PoD in collection of the overdue account (the charging of this sum does not imply the granting of an extension of credit);
(f) Terminate this Contract.
8. Risk and Insurance
8.1 Despite the granting of credit, passing of risk, giving of possession, or delivery to the Buyer, both legal and equitable title in the Goods shall be retained by PoD until the full purchase price of any Goods or Services has been paid.
8.2 Risk in the Goods passes from PoD to the Buyer when the Goods are delivered, or deemed to have been delivered, to the Buyer or its agent pursuant to this Contract. Until property in the Goods passes to the Buyer, the Buyer shall keep the Goods insured in the name of PoD and the Buyer for their respective rights and interest, and PoD shall be entitled to receive all insurance proceeds which are payable in respect of the Goods.
9. Confirmation of Commercial Usage
9.1 The Buyer confirms that it is not a private consumer and is acquiring the Goods and Services for business purposes. The Buyer shall not do anything, or omit to do anything, the result of which may give rise to liability for PoD, and shall indemnify PoD for any such liability and all costs and expenses in respect of any claim regarding a private consumer.
10. Personal Information and Privacy
10.1 The Buyer authorises PoD to collect at any time and from any person or body personal information concerning the Buyer (Personal Information).
10.2 The Buyer acknowledges and agrees that Personal Information may be held or used by PoD, or disclosed by PoD to any person or body, for any of the above purposes. The Buyer may have access to, and request the correction of, Personal Information.
11. Termination
11.1 Without limiting the generality of any other clause in this Contract, PoD may, without notice and without prejudice to other rights PoD may have at law or under this Contract, terminate this Contract if the Buyer:
(a) Becomes, threatens or resolves to become, or is in jeopardy of becoming, subject to any form of insolvency administration;
(b) Being a partnership, is dissolved, threatens or resolves to dissolve, or is in jeopardy of dissolving;
(c) Being a natural person, dies; ceases, or threatens to cease, to conduct its business in the normal manner.
11.2 Upon termination of this Contract, clause 7.1 applies.
12. Liability
12.1 The services and the work product of PoD are sold “as is.” In all circumstances, the maximum liability of Consultant, PoD’s directors, officers, employees, agents and affiliates, to The Buyer for damages for any and all causes whatsoever, and the Buyer’s maximum remedy, regardless of the form of action, whether in contract, tort or otherwise, shall be limited to the amount paid by the Buyer to PoD. In no event shall PoD be liable for any lost data or content, lost profits, business interruption or for any indirect, incidental, special, consequential, exemplary or punitive damages arising out of or relating to the materials or the services provided by PoD, even if PoD has been advised of the possibility of such damages, and notwithstanding the failure of essential purpose of any limited remedy.
13. Indemnity
13.1 The Buyer agrees to indemnify, and keep indemnified, PoD against any action, claim, demand, liability, damages, costs (including legal costs) or expenses arising out of or in connection with:
(a) Any alleged infringement of any IP Rights of any third party, or any alleged production of illegal or defamatory material, resulting from PoD manufacturing or dealing with any Goods, or supplying any Services, according to the specifications of the Buyer;
(b) Any claims by the Buyer’s customers, agents, servants or contractors or any other person whatsoever in respect of any damage, injury or loss;
(c) Any breach by the Buyer of its obligations under this Contract;
(d) Any wilful, unlawful or negligent act or omission by the Buyer;
(e) Loss or corruption of data or damage (whether of PoD or any third party) caused by any computer virus supplied (knowingly or unknowingly) by or on behalf of the Buyer.
14. General
14.1 PoD will not be responsible for any loss or corruption of data stored in, or used with, the Goods, damage or loss (including consequential loss) caused by any computer virus however contracted, or damage, loss of data or errors occurring when files are converted to bromide or film.
14.2 Any dispute or difference between PoD and the Buyer regarding this Contract or its termination which cannot be settled amicably and in good faith shall, at the instance of either party, be referred for mediation to an accredited mediator. Each party agrees to diligently and in good faith co-operate and participate in the mediation process. The costs of the mediator shall be shared equally between PoD and the Buyer or as the mediator sees fit.
14.3 Failure or delay to exercise a right under this Contract shall not operate as a waiver of that right. Waiver of any default or breach of this Contract shall not be interpreted as a waiver of any subsequent breach. No waiver by PoD is effective unless it is in writing signed by PoD.
14.4 No variation to the Contract shall be valid unless signed by an authorised officer of PoD.
14.5 The Buyer may not assign this Contract without PoD’s prior written consent.
14.6 This Contract is governed by either Australian or New Zealand law (based on selection when signing). The parties submit to the exclusive jurisdiction of the selected country’s courts
14.7 PoD shall not be liable for any errors or omissions resulting from a misinterpretation of any verbal instructions given by the Buyer at any time.
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