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Carpet Court General Terms & Conditions

GENERAL CONDITIONS

 

IT IS AGREED

  1. OPERATION & DEFINITIONS

In this Agreement the capitalised terms set out in Schedule 1 shall be given the corresponding meaning, unless the context requires otherwise;

  1. APPOINTMENT
    • Carpet Court Appoints Automation Consulting to provide to Carpet Court the Scoped Services and the Support Services for the Fees during the Appointment in accordance with this Agreement; and
    • Automation Consulting accepts the Appointment in accordance with this Agreement.
  2. RESTRAINT

In consideration of the Appointment, Automation Consulting agrees to not, either directly or indirectly, at any time for 12 months after the final Deliverable is provided to Carpet Court under the Appointment in Australia, provide Scoped Services or Support Services similar to those services provided to Carpet Court during the Appointment to a Competitor of Carpet Court.

  1. SUPPLY
    • Automation Consulting warrants that use of the Deliverables supplied as part of the Scoped Services are fit for purpose and will fulfil all the requirements set out in the SoW.
    • Automation Consulting must supply to Carpet Court the Scoped Services and the Support Services:
      • in accordance with and so as to meet the requirements of the SoW, including without limitation, in accordance with any due dates for Services;
      • in a professional, efficient and safe manner, without negligence;
      • in accordance with all written directions given by Carpet Court that do not materially affect the agreed upon scope of Services or conflict with any professional standards or laws;
      • provided that these policies have been made available in writing to Automation Consulting in a timely manner; and
      • to the extent such standards, awards, laws, and regulations are applicable to the Services provided under this Agreement.
    • Acceptance Testing. If the SoW requires Acceptance Tests to be conducted in relation to any Deliverables:
      • the party required under the SoW to conduct the Acceptance Tests must conduct those Acceptance Tests;
      • where the SoW requires Carpet Court to conduct Acceptance Tests, Automation Consulting must, if requested by Carpet Court, assist Carpet Court in the conduct of those Acceptance Tests.
      • if any Deliverables fail any Acceptance Tests (Defect), Carpet Court must notify Automation Consulting (Defect Notice) which must state the grounds upon which the Defect Notice is issued; and any steps Carpet Court requires Automation Consulting to take in order to remedy the Defect; and give Automation Consulting a reasonable opportunity to rectify the Defect, so the Deliverables are capable of passing the Acceptance Tests.
      • if any Deliverables are still failing Acceptance Tests at the end of the time for completion of those Acceptance Tests as specified in the SoW (or any extension to that time agreed or allowed by Carpet Court), Carpet Court may:
        • Accept the Deliverables, but only on condition that Automation Consulting reduces the amounts payable under this Agreement by an amount reasonably acceptable to Automation Consulting taking into account the degree to which those Deliverables do, or do not, comply with this Agreement;
        • not Accept the Deliverables, but nevertheless elect to continue with this Agreement, subject to Automation Consulting observing any conditions reasonably required by Carpet Court; or
        • terminate the Appointment (in whole or in part) with immediate or later effect by giving notice to Automation Consulting, provided that Automation Consulting has failed to remedy material and repeated Defects after being given reasonable opportunity to do so.
      • if a Deliverable pass the Acceptance Tests, Carpet Court must notify Automation Consulting that it accepts those Services. If Carpet Court does not provide notice to Automation Consulting within three (3) business days of an Acceptance Test being required the parties agree that the Deliverable requiring the Acceptance Test has passed that Acceptance Test.
  1. PRICE AND PAYMENT
    • The SoW states either or both of the Price payable under this Agreement and how the Price is to be calculated.
    • Automation Consulting will invoice Carpet Court for the Price at the times specified in the SoW, specifying how those amounts are calculated.
    • The parties agree that, unless otherwise stated, all amounts payable under this Agreement by Carpet Court are referred to on a GST exclusive basis. Automation Consulting agrees to calculate and include the GST amount payable in any invoices issued to Carpet Court under this Agreement.
    • Carpet Court agrees to pay any additional charges reasonably required and proposed by Automation Consulting for Automation Consulting to provide the Scoped Services or Supply Services during the Appointment.
  2. IP RIGHTS
    • Carpet Court retains ownership of all IP Rights in Carpet Court Materials.
    • Carpet Court grants to Automation Consulting a non-exclusive, non-transferable licence to use, copy, modify and adapt the IP Rights in Carpet Court Materials, solely to the extent required for Automation Consulting to supply the Scoped Services and Support Services under the Appointment.
    • During the Appointment, Automation Consulting:
      • agrees to assign to Carpet Court (and Carpet Court hereby accepts the assignment of) all present and future IP Rights in any such developments or improvements made by Automation Consulting to Carpet Court Materials;
      • grants to Carpet Court a non-exclusive, non-transferable licence of the IP Rights created as part of the Scoped Services, Support Services or Deliverables.
    • Automation Consulting retains ownership of all IP Rights in all Automation Consulting Materials and Carpet Court agrees to assign to Automation Consulting (and Automation Consulting hereby accepts the assignment of) all present and future IP Rights in any such developments or improvements made by Carpet Court to Automation Consulting Materials.
    • If the SoW requires the use of third party licenses, the parties agree to do all things necessary, during the Appointment, to secure the third party licenses set out in the SoW or (in the case the proposed licenses cannot be obtained) similar third party licenses for Automation Consulting to be able to provide the Scoped Services and Support Services.
  3. RISK
    • Third Party Software. Carpet Court acknowledges that:
      • the Deliverables will utilise hardware and software from third parties or from Carpet Court directly (such as Carpet Courts systems, OCI, website builder or the like); (Third Party Software) and
      • Automation Consulting warrants that all third-party software used in the delivery of services will be duly licenced and will not infringe on any third-party intellectual property rights. Automation Consulting shall make reasonable efforts to ensure that third-party software is reliable and suitable for the purposes intended under this Agreement.
    • Automation Consulting agrees to perform services with reasonable care and skill, ensuring that deliverables substantially meet the specifications outlined in the Statement of Work. While the services and deliverables are provided on an as-is basis, Automation Consulting commits to promptly addressing any significant deviations from agreed specifications.
      • Indemnity by Carpet Court. Carpet Court agrees to indemnify Automation Consulting against claims arising from Carpet Court’s breach of this agreement, except where such claims arise from gross negligence or wilfil misconduct on the part of Automation Consulting.
      • Indemnity by Automation Consulting. Automation Consulting shall indemnify Carpet Court against any claims resulting from Automation Consulting’s breach of this agreement or failure to comply with applicable laws. This imdemnification is subject to a reasonable cap, reflective of the contract value, and excludes cases of minor errors or omissions.
    • Limitation of Liability. The total liability of Automation Consulting under ths agreement shall be capped at the fees paid to Automation Consulting in a twelve (12) month period. This cap does not apply to losses resulting from gross negligence or wilful misconduct by Automation Consulting.
  4. CONFIDENTIAL INFORMATION AND PRIVACY
    • Automation Consulting agrees to abide by Carpet Court’s privacy policy.
    • Each party must comply with:
      • the reasonable directions of the other party in relation to the handling of any Personal Information; and
      • the Privacy Act 1988 (Cth).
    • Each party:
      • may use Confidential Information of the other party solely for the purposes of this Agreement;
      • except as permitted under this clause, must keep confidential all Confidential Information of the other party; and
      • may disclose Confidential Information of the other party only:
        • to persons who are aware and agree that the Confidential Information of the other party must be kept confidential; and either have a need to know (and only to the extent that each has a need to know), or have been specifically approved by the other party; or
        • as required by law or stock exchange regulation.
  1. DISPUTES
    • Neither party may start court proceedings (except proceedings seeking interlocutory relief) in respect of a Dispute unless it has first complied with this clause.
    • A party claiming that a Dispute has arisen must notify the other party in writing of the event occurring that has given rise to the Dispute.
    • If a Dispute is not resolved within a 20 day working period (or if the parties agree a longer period, that longer period), of a Dispute being notified under clause 9.2, the Dispute must be referred:
      • for mediation, in accordance with the Australian National Mediation Standards; and
      • to a mediator agreed by the parties, or if the parties do not agree on a mediator, a mediator nominated by the then current President of the New South Wales Law Society (or the President’s nominee).
  1. TERMINATION
    • The Appointment terminates if:
      • A party gives at least ten (10) business days notice to the other party of this Agreement of a date that it wants the Appointment to terminate;
      • a party terminates the Appointment in accordance with clause 10.2; or
      • the parties mutually agree in writing to terminate the Appointment upon shorter notice than proposed under 10.1.1;
    • A party may terminate this Appointment with immediate effect by giving notice to the other party if that other party:
      • breaches any term of this Agreement and such breach is not capable of remedy; or fails to remedy such breach within 30 days after receiving notice requiring it to do so; or
      • becomes subject to an Insolvency Event.
    • As soon as possible after termination or expiry of this Appointment:
      • each party (first party) must return to the other party (or at the other party’s direction, destroy) all Confidential Information of that other party in material form (including without limitation, those parts of all notes or records of the first party containing Confidential Information of the other party) in the first party’s possession or control;
      • Automation Consulting must return to Carpet Court (or at Carpet Court’s direction, destroy) all Carpet Court Material in Automation Consulting’s possession or control;
      • Automation Consulting must issue an invoice for all or part of the Scoped Services or Support Services provided to date (whether complete or partially complete) under this Agreement for payment by Carpet Court, which Carpet Court agrees to pay within thirty days of termination or expiry of this Appointment.
  1. NOTICES AND OTHER COMMUNICATIONS
    • A notice, demand, consent, approval or communication under this Agreement (Notice) must be:
      • in writing, in English and signed by a person duly authorised by the sender;
      • hand delivered, sent by pre-paid express post or email to the recipient’s address for Notices being the parties respective ASIC registered office.
    • A Notice given in accordance with clause 1 takes effect when taken to be received (or at a later time specified in it), and is taken to be received:
      • if hand delivered, on delivery;
      • if sent by pre-paid express post, four business days after the date of posting (or seven business days after the date of posting to or from a place outside Australia); or
      • if sent by email, when received by the recipient’s electronic information system, pursuant to section 24(1) of the Electronic Transactions (New South Wales) Act 2001/section 13A of the Electronic Transactions Act 2000 (NSW)];
      • if the delivery or receipt is not on a business day or is after 5:00pm on a business day, the notice is taken to be received at 9:00am on the next business day.
  1. MISCELLANEOUS
    • Governing Law

This Agreement is governed by and construed in accordance with the laws of New South Wales.

  • Jurisdiction

Each party irrevocably:

  • submits to the non-exclusive jurisdiction of the courts of New South Wales and the courts competent to determine appeals from those court, with respect to any proceedings which may be brought at any time relating to this Agreement; and
  • waives any objection it may now or in the future have to the venue of any proceedings, and any claim it may now or in the future have that any proceedings have been brought in an inconvenient forum, if that venue falls within clause 2.1.
  • Severability

If anything in this Agreement is or is determined to be unenforceable, illegal, voidable or void in a jurisdiction then that provision of the Agreement is to be read down, if possible, so as to be valid and enforceable, and otherwise shall be severed to the extent of the invalidity or unenforceability, without affecting the remaining provisions of this Agreement or affecting the validity or enforceability of that provision in any other jurisdiction.

  • Further Assurances

Each party will execute such documents, and do all acts and things as are necessary or desirable to give full effect to this Agreement.

  • Entire Agreement

This Agreement constitutes the entire agreement between the parties relative to this Agreement and supersedes all prior understandings, agreements or representations. For clarity, the parties agree that anything unintentionally omitted from the work already completed can be added to the SoW

  • Subcontracting and Assignment. Automation Consulting may assign or subcontract to any person this Agreement or any right under this Agreement and will notify Carpet Court in respect of any 3rd party sub-contracting. 
  • Relationship. Automation Consulting acknowledges that:
    • Automation Consulting will supply the Services as a contractor;
    • this Agreement does not create a relationship of employer and employee, principal and agent, or partnership between Carpet Court and Automation Consulting; any of Automation Consulting’s subcontractors; or any of Automation Consulting’s or Automation Consulting’s subcontractor’s employees; and
    • this Agreement does not give Automation Consulting, its subcontractors or their employees, authority to bind Carpet Court. If under any statute Carpet Court is considered an employer or principal employer and is obliged to make payments in respect of the amounts paid or benefits provided to or in relation to any employee or subcontractor of Automation Consulting, Automation Consulting must make all such payments on behalf of Carpet Court; and indemnifies Carpet Court against all such payments made by Carpet Court, including: any additional tax, levy, or other payment whatsoever, including any interest, penalty or late fee that may be payable in respect of the late or non-payment of such tax, levy or other payment; and remuneration, annual leave, sick leave, long service leave or other leave, or any other payment or entitlement to be paid or provided to such persons.

 

 

 

 

SCHEDULE 1

DEFINITIONS AND INTERPRETATION

DEFINITIONS

In this Agreement the following capitalised terms shall be given the corresponding meaning, unless the context requires otherwise:

1.            Acceptance Tests means tests to ensure that Deliverables meet the requirements of this Agreement;

2.            Agreement means this Automation Services Agreement and any other instrument expressed to be supplemental to this Agreement (which has been agreed by both parties in writing);

3.            Appointment means that appointment of Automation Consulting by Carpet Court to provide the Scoped Services and Support Services to Carpet Court for the Term; and Appoint will have a corresponding meaning;

4.            Business Day means a day that is not a Saturday, Sunday, bank holiday or public holiday in Sydney, Australia.

5.            Competitor means any of the following businesses whom are competitors of Carpet Court set out in the SoW.

6.            Claim includes any claim, action, suit, course of action, proceeding, cost or expense (including any reasonable legal, equitable, statutory costs or expenses), demand, verdict or judgement, whether arising at common law, in equity, or under the provisions of any statute, award, order, determination, agreement or otherwise.

7.            Carpet Court Materials means all Materials created, or provided to Automation Consulting, by Carpet Court in the course of the Appointment, including any developments or improvements to such Materials by or for either Automation Consulting or Carpet Court at the time and from time to time;

8.            Automation Consulting materials   means all Materials created, or provided to Carpet Court, by Automation Consulting in the course of the Appointment, including any developments or improvements to such Materials by or for either Automation Consulting or Carpet Court at the time and from time to time;

9.            Material means all documents associated with the IP Rights, the Scoped Services, Support Services or the Deliverables including but not limited to inventions, software, databases, models, drawings, plans, artwork, designs, logos, reports, advices, proposals, records, formulae, notes, correspondence, diagrams, photographs, specifications and software, and being either:

9.1         Carpet Court Materials; or

9.2         Automation Consulting Materials;

10.          Confidential Information means any of the following which is not in the public domain other than due to a breach by a party of this Agreement:

10.1       information concerning the contents of this Agreement or any transaction contemplated by this Agreement;

10.2       all databases, source codes, methodologies, manuals, artwork, advertising manuals, trade secrets and all financial, accounting, marketing and technical information, customer and Automation Consulting lists, know-how, technology, operating procedures and other information, used by or relating to Carpet Courtand its transactions and affairs;

10.3       all notes and reports incorporating or derived from information referred to in 10.2; and

10.4       all copies of the information, notes and reports referred to in clauses 10.1 – 10.3.

11.          Defect means any failure of the Deliverables to pass any applicable Acceptance Tests;

12.          Deliverables means each of those deliverables set out in the SoW to be provided by Automation Consulting to Carpet Court as part of the Scoped Services;

13.          Dispute means a dispute arising out of or relating to this Agreement, including without limitation, a dispute about the breach, termination, validity, or subject matter of this Agreement, or a claim in equity or in tort relating to the performance or non-performance of this Agreement.

14.          Future Rights means jointly and severally all those rights (statutory and otherwise) comprised in the know how and in any patent rights, design rights, trade mark rights or copyright and which may be granted or acquired in any way whatsoever in relation to the Material and which are developed in the future by or on behalf of Automation Consulting and in respect of all media either in existence now or in the future;

15.          Governmental Agency means any government or governmental, administrative, monetary, fiscal or judicial body, department, commission, authority, tribunal, agency or entity in any part of the world and includes the Australian Taxation Office.

16.          GST Act means A New Tax System (Goods and Services Tax) Act 1999 (Cth).

17.          GST Law has the same meaning as in the GST Act and other GST related legislation.

18.          GST means goods and services tax or similar value added tax levied or imposed in Australia under GST law or otherwise on a supply;

19.         Insolvency Event means:

19.1             a receiver, receiver and manager, administrator, provisional liquidator, trustee or similar official is appointed in respect of the entity or in respect of any of the assets or undertaking of the entity;

19.2             the entity suspends payment of its debts generally;

19.3             the entity is or becomes unable to pay its debts as and when they become due or is otherwise insolvent within the meaning of the Corporations Act 2001 (Cth);

19.4             the entity enters into or resolves to enter into any arrangement or compromise with its creditors or any class of them; or

19.5             an application or order is made for the winding up or dissolution of, or the appointment of a provisional liquidator, to the entity or a resolution is passed or steps are taken to pass a resolution for the winding up or dissolution of the entity otherwise than for the purpose of an amalgamation or reconstruction that has the prior consent of the other party.

20.          IP Rights means jointly and severally the Future Rights and all intellectual property rights, including without limitation patents, copyright, rights in circuit layouts, registered designs, trade marks the right to have confidential information kept confidential and any application or right to apply for registration of any of those rights and any developments thereof;

21.          Personal Information means information or an opinion (including information or an opinion forming part of a database), whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or who can be reasonably ascertained, from the information or opinion;

22.          Price means the total amount Carpet Court is required to pay under this Agreement as set out in the SoW and being comprised of the Scoped Service Fee, Support Service Fee and Other Fees (as set out in the SoW).

23.          Scoped Services means all services Automation Consulting is required to supply under the Appointment as specified in the SoW and all Deliverables and other things to be supplied by Automation Consulting in the course of supplying the services set out in the SoW;

24.          Support Services means all support services Automation Consulting is required to supply under the Appointment as specified in the SoW

25.          Statement of Works (SoW) means  means the document forming part of this Agreement describing the services Automation Consulting will supply to Carpet Court or which is attached to this Agreement, and other relevant details about those services;

26.          Liabilities includes all liabilities (whether actual, contingent or prospective), losses, damages, costs and expenses (including any legal costs and expenses) of whatever description;

27.          Term means that period of time from the date of execution of this Agreement until the termination of the Appointment.

28.          Tax means any present or future tax, levy, charge, impost, fee, deduction, goods and services tax, compulsory loan or withholding of whatever kind and whether direct or indirect, which is assessed, levied, imposed or collected by any Governmental Agency and includes, but is not limited to income tax, capital gains tax, recoupment tax, land tax, sales tax, payroll tax, tax instalment deduction, fringe benefits tax, group tax, profit tax, interest tax, property tax, undistributed profit tax, withholding tax, municipal rates (and any interest, fine, penalty, charge, fee or any other amount imposed on, or in respect of any of the above) but excludes any duty.

INTERPRETATION

In this Agreement, unless the contrary intention appears:

1.            headings are for ease of reference only and do not affect the meaning of this Agreement and do not form part of the clause;

2.            the singular includes the plural and vice versa and words importing a gender include other genders;

3.            words used in this Agreement and defined in the dictionary will have the meaning set out in the dictionary. Other grammatical forms of defined words or expressions have corresponding meanings;

4.            a reference to a clause, paragraph, schedule or annexure is a reference to a clause or paragraph of or schedule or annexure to this Agreement and a reference to this Agreement includes any schedules and annexures attached to this Agreement;

5.            a reference to a document or agreement, including this Agreement, includes a reference to that document or agreement as novated, altered or replaced from time to time;

6.            a reference to a right includes a benefit, remedy, authority, discretion and power;

7.            a reference to a Party includes its executors, administrators, successors and permitted assigns and if more than one, includes those persons jointly and each of them severally, their respective executors, administrators and assigns;

8.            words importing the whole of the matter or thing include a part of the matter or thing;

9.            words and expressions importing natural persons include partnerships, bodies corporate, associations (whether incorporated or not), firms, joint ventures, trusts, authorities, governments and governmental, semi‑governmental and local authorities and agencies;

10.          words and expressions defined in the Corporations Act 2001 (Cth) as at the date of this Agreement have the meanings given to them in the Corporations Act 2001 (Cth) at that date; and

11.          any provision in this Agreement stating that a Party “must” do something or “must” not do something should be read and construed as an agreement by that Party to do or not to do the matter or thing referred to;

12.          no provisions (or part of provision) of this Agreement shall be construed against a Party merely because that Party was responsible for drafting same;

13.          each clause in this Agreement is not, except where expressly provided, limited in meaning or effect by any other clause in this Agreement;

14.          a reference to writing includes typewriting, printing, lithography, photography and any other method of representing or reproducing words, figures or symbols in a permanent and visible form.

15.          any agreement, covenant, obligation, representation, undertaking, indemnity, guarantee or warranty entered into by a Party for or with another person binds them jointly and severally and an agreement, covenant, obligation, representation, undertaking, indemnity, guarantee or warranty in favour of a Party for or with another person is for the benefit of them jointly and severally;  a release given to the other person shall not release the Party from any other obligation; and the granting of time or another indulgence to another person will not release the Party of its obligations under this Agreement;

16.          references to includes or including are illustrative only and shall not, in any way, be construed to limit or reduce the effect of the clause or this Agreement to the examples given.