Terms

TERMS AND CONDITIONS OF PROVISION OF CONSULTANCY SERVICES

Revision: 160215

In these terms and conditions, COTIQU Pty Ltd (ABN: 21 151 324 864) is referred to as “COTIQU” and the party to whom the Proposal is addressed is referred to as “the Client” (collectively “the Parties” or individually the “Party”), the services and deliverables are detailed in the Proposal. The offer outlined in our Proposal is open for acceptance by the Client for a period of 30 days after which the offer shall lapse, unless otherwise notified by COTIQU.

THE CLIENT’S PARTICULAR ATTENTION IS DRAWN TO THE LIMITATIONS AND EXCLUSIONS SET OUT IN CLAUSES 2, 4, 5 AND 7

1. The Agreement

1.1 The agreement made by the Parties comprises:

1.1.1 COTIQU’s written proposal issued to the Client in connection with the Services (the “Proposal”);

1.1.2 the Schedule of Charges where one has been included in the Proposal;

1.1.3 and these terms and conditions;

collectively the “Agreement” and shall be interpreted in the above order of priority in the event of any inconsistency or conflict with documents appearing later in the list taking priority over documents appearing earlier in the list.

1.2 The Agreement shall be deemed accepted by the Client upon the first of (i) the Client’s acceptance of the Agreement, (ii) the Client’s instruction to commence work, (iii) COTIQU starting work at the Client’s site or (iv) the Client’s payment of any agreed fee.

1.3 Variations or additions to the Agreement can be made. However, both Parties must agree to the variation or addition in writing.

2. Provision of Services and Deliverables

2.1 COTIQU undertakes that it will perform the services and supply the deliverables expressly described in the Proposal (“the Services”) with reasonable skill and care and in a good and professional manner.

2.2 COTIQU will use consultants with appropriate skills and experience for the provision of the Services. COTIQU may only replace those consultants with consultants of suitable experience and suitability.

2.3 COTIQU agrees to deliver the Services within a reasonable time. Both Parties will use all reasonable endeavours to meet any target date, project plan or time table referred to in the Agreement (“Date”).

2.4 The Client acknowledges and agrees that where COTIQU designs, builds, develops, delivers, customises or integrates any product or other deliverable provided as a part of the Services (including without limitation software) it does so as a consultant providing services and not as a supplier or manufacturer of goods.

3. Client’s Obligations

3.1 COTIQU may need access to the Client’s facilities, information, tools and resources for and during the provision of the Services. If so requested by COTIQU, the Client, without charge to COTIQU, will provide access to these to the extent reasonably requested by COTIQU and shall cooperate with COTIQU to the extent reasonably required to achieve the objectives set out in the Agreement. The Client shall further make decisions and inform COTIQU of the results of those decisions when COTIQU reasonably requests it to do so for COTIQU’s performance of the Services.

3.2 The Client acknowledges that, in giving any opinion or advice in the course of provision of the Services, COTIQU relies on the information about the Client or any project described in the Proposal provided to it by the Client and does not seek to establish the reliability of such information; accordingly, the Client:

3.2.1 undertakes to provide complete and accurate information about itself and about any such project which is or may be relevant to the Services and to provide such other information as COTIQU may reasonably request; and

3.2.2 warrants that any such information provided is accurate, complete and not misleading.

4. Fees and Payment

4.1 The Agreement sets out the proposed fees, costs and expenses for the Services (“the Price”). Fees based on time and materials or on an estimate do not constitute a fixed price. COTIQU may increase the Price (i) on each occasion that the meeting of any Date is delayed by the Client for 3 months or more; and (ii) to reflect any variation to the Proposal requested by the Client; and (iii) to reflect any increase in raw materials, supplier costs or any currency fluctuation.

4.2 All fees, costs and expenses referred to in the Agreement are exclusive of GST.

4.3 COTIQU may invoice the Client for Services performed notwithstanding completion of the Services has been delayed by the Client’s failure to meet any Date.

4.4 Unless otherwise agreed in writing, the Client shall pay all fees, costs and expenses related to the Services upon presentation of COTIQU’s invoice.

4.5 Payment Terms are 14 days from the date of the invoice.

4.6 If any invoice is not paid in full and cleared funds within 40 days from presentation, COTIQU may suspend performance of the Services and / or charge reasonable interest on any overdue amount from the due date until the date of actual payment of the overdue amount.

5. Limitations and Exclusions

5.1 Each Party accepts liability without limit for death or personal injury to any person due to its negligence or the negligence of its employees.

5.2 In respect of any liability other than those falling within clause 5.1 above and subject to clause 5.4, each Party’s total liability arising out of or in connection with the Agreement shall not exceed in aggregate the lesser of 100% of the total fees or $10,000 Aus, payable by the Client under this Agreement.

5.3 Neither Party shall in any circumstances be liable to the other whether in contract, tort (including negligence) or otherwise for any loss of profit, loss of contracts, loss of benefit, loss of production, loss of availability, loss of data, loss of anticipated savings, loss of reputation, loss of goodwill or loss of use suffered or incurred directly or indirectly by the other Party, any consequential, indirect or special loss or damage howsoever arising and of whatsoever nature or any punitive or exemplary damages.

5.4 Nothing in this Clause 5 shall affect or limit the Client’s obligation to pay sums properly due under the Agreement.

5.5 The express terms of this Agreement shall apply in place of all warranties, conditions, terms, representations, statements, undertakings and obligations whether expressed or implied by statute, common law, custom, usage or otherwise, all of which are excluded to the fullest extent permitted by law.

5.6 COTIQU shall not in any circumstances be liable to the Client for any loss or damage resulting from a modification of, adjustment or repair to the results of the Services or from any use by the Client of such results in a manner outside the reasonable contemplation of the Parties at the time the Agreement was made. Any such modification, adjustment, repair or use shall be undertaken at the Client’s sole risk.

5.7 COTIQU shall have no liability to the Client to the extent that such liability would not have arisen but for a breach by the Client of its obligations under the Agreement and without limiting the foregoing COTIQU shall not be liable for any failure to meet any Date if such failure would not have occurred but for the Client’s failure to meet any Date or for the Client’s breach of the Agreement.

5.8 COTIQU shall not be liable for any defect, wastage or other loss whatsoever in, of or arising from equipment, hardware or software or other items or made available to COTIQU by the Client (“Client Materials”) which shall be held, worked on and used at the Client’s risk.

5.9 COTIQU shall not be responsible for any loss, damage, cost or expense arising from, or from any defect, mistake or inaccuracy in any Client Materials or information specified or supplied by the Client; any loss, damage, cost or expense arising there from shall be for the sole account of the Client.

5.10 COTIQU’s liability for Client Materials specified or provided to COTIQU by the Client or otherwise held or worked on by COTIQU on behalf of the Client shall be limited to the lesser of the basic raw material cost of the materials or an independent external valuation of such materials.

5.11 Nothing in this Agreement shall limit a Party’s liability for fraud, fraudulent misrepresentation or deceit.

6. Intellectual Property and Rights of Use

6.1 Intellectual Property (“IP”) means patents, rights to inventions, registered designs, copyright and related rights, database rights, design rights, topography rights, trade secrets, rights in unpatented know-how, rights of confidence and any other intellectual property rights of any nature including all applications, all rights to apply for and renewals or extensions of such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.

6.2 IP and rights to IP which the relevant Party can demonstrate is either already held by it at the date of the Agreement or at any time on or before the relevant time has been acquired or developed by it after the date of this Agreement entirely independently of the Services and of use of any Confidential Information of the other Party, and all modifications thereto and derivative versions thereof created at any time (“Background IP”) shall remain the property of that Party.

6.3 The Client hereby grants to COTIQU a royalty-free, non-exclusive, non-transferable licence to use the IP as required to allow COTIQU to perform its obligations under the Agreement.

7. Forecasts and Recommendations / Third Party Services

7.1 Statements made by COTIQU relating to the Services, and all recommendations, opinions surveys and forecasts (together “Forecasts”) in the Agreement, or any report, presentation or other communication are made in good faith on the basis of information available at the time and such Forecasts are addressed only to the Client. Whilst COTIQU will use reasonable skill and care in the preparation of such Forecasts, neither COTIQU nor any consultant employed or engaged by COTIQU shall have any liability in relation to losses or damage incurred as a result of or in relation to the Client’s reliance on such opinions or recommendations and Client acknowledges that such liability is a business risk of the Client.

7.2 Implementation of the results of the Services and the Client’s completion of any project of which the Services form part may require the involvement or supervision of or giving advice to third parties engaged by the Client. COTIQU strongly recommends that the Client obtain independent advice before entering into any legally binding commitment with any such third parties.

7.3 COTIQU may, during its performance of the Services, make statements about or recommendations of third party products, software, equipment or services. COTIQU gives no warranty in relation to such products, software, equipment or services, and the Client shall rely solely on the warranties and remedies provided by any such third party with whom it may contract.

7.4 Without limiting any other provision of these terms and conditions, COTIQU will use reasonable endeavours to assist the Client to minimise risk and additional cost or delay relating to the involvement in the Client’s project of any third parties involved in manufacturing or the provision of other services or goods to the Client: in no circumstance shall COTIQU be liable for any failure by any such third party to supply goods or perform services within particular timescales or to particular specifications.

8. Termination

8.1 Either Party may at any time and without cause terminate the Agreement on giving 10 days’ written notice of termination to the other Party.

8.2 Upon termination under clause 8.1, the Client shall pay COTIQU all sums due in respect of the Services provided and expenses incurred prior to termination.

8.3 Either Party may terminate the Agreement forthwith by written notice if the other Party commits an act of bankruptcy or goes into liquidation or is put into liquidation (other than for a proper commercial purpose and whilst solvent) or a receiver is appointed or an administration order is made in respect of it.

8.4 Either Party may terminate the Agreement forthwith by written notice if the other Party commits a material breach of the Agreement and has failed to remedy the breach within 30 days of receipt of a written notice from the other Party identifying that the breach has occurred.

8.5 Termination shall not affect any accrued rights or liabilities arising out of the Agreement.

9. Non-Solicitation

9.1 The Client shall not, either during the provision of the Services or for a period of three months from completion, employ or offer employment to any member of COTIQU’s project team. This shall not prevent the Client from employing or offering employment to a member of COTIQU’s project team who responds to an advertisement in the media.

9.2 COTIQU shall not, either during the provision of the Services or for a period of three months from completion, employ or offer employment to any member of the Client’s project team. This shall not prevent COTIQU from employing or offering employment to a member of the Client’s project team who responds to an advertisement in the media.

10. Third Party Rights

No person or entity other than the Client shall have any rights to enforce any of the terms of the Agreement against COTIQU.

11. Assignment

Neither Party shall assign the Agreement without the other Party’s prior written consent (not to be unreasonably withheld or delayed).

12. Publicity

12.1 The Client agrees that COTIQU may:

12.1.1 with prior permission from the Client, refer to the Client on its client lists; and

12.1.2 refer to the nature of the Services contracted for provided that the Client is not identified.

12.2 Neither Party shall make any statement about the Services to the press or the public without the other Party’s written consent.

13. Waiver

No failure, delay or indulgence by either Party in exercising any power or right under the Agreement shall operate as a waiver of that power or right.

14. Notices

14.1 Where the Client is required to give notice in writing to COTIQU, the notice must be addressed to the individual named as the Proposal Contact in the Agreement (or that person’s successor) at the then current registered office address of COTIQU.

14.2 Where COTIQU is required to give notice in writing to the Client, the notice will be addressed to the person nominated as the Client’s primary contact (or that person’s successor) at the then current registered office address of the Client.

14.3 All notices in writing must be sent by post or by email.

14.4 In the absence of evidence of earlier delivery:

14.4.1 a notice sent by post will be deemed to have been served two business days after posting;

14.4.2 a notice by email will be deemed received on delivery.

15. Force Majeure

Neither COTIQU nor the Client will be liable for any failure to perform their obligations, or delay in the performance of their obligations, if the failure or delay is due to causes outside their reasonable control.

16. Travel Expenses

Any travel of COTIQU’s project team required by the Client outside of the Sydney metropolitan area will be invoiced to the Client in accordance with the Australian Tax Office’s most current Tax Determination for reasonable travel and overtime meal expense amounts, unless otherwise agreed with the Client.

17. Severability

If any provision or part of a provision of the Agreement is held to be invalid, illegal or unenforceable that part shall be severed and the remaining provisions shall continue to be valid and enforceable as if the Agreement had been executed with the invalid provision omitted.

18. Entire Agreement

This Agreement constitutes the entire and only agreement in relation to the Services and deliverables and supersedes all prior agreements, representations, understandings or discussions. Any terms or conditions which the Client purports to apply under any purchase order, confirmation of order, specification or other document do not form part of this Agreement. The Client acknowledges that any agreement, representation, understanding or discussion it wishes to rely upon has been recorded in the Agreement and that no reliance has been placed upon any agreement, representation, understanding or discussion that has not been embodied in this Agreement.

19. Applicable Law & Jurisdiction

The Agreement shall be governed by and construed in accordance with the laws of New South Wales and any dispute arising out of or in connection with the Agreement will be subject to the exclusive jurisdiction of the Courts of New South Wales.