Outline Global Pty Ltd (ACN 122 481 341)
1 APPLICATION OF THIS DOCUMENT
(a) This Contract applies to any and all Services which:
(i) the Client from time to time requests the Supplier to perform; or
(ii) the Supplier from time to time performs for the Client.
(b) This Contract takes effect on and from the first to occur of the following:
(i) the date all parties have executed a copy of this Contract; or
(ii) after the Supplier sends a copy of this Contract to the Client and provides Services to the Client.
2 AIRBORNE IMAGING AND CONSULTING SERVICES
(a) The Supplier shall perform the imaging collection and or consulting Services specified in the Proposal. The Supplier will make every effort to complete the Services within the time frame stipulated in the Proposal, but will not be responsible for any delays beyond its control, including, but not limited to, pandemics, weather and safety considerations or civil disturbances. The Supplier will not be liable for any damages or penalties whatsoever as a result of failure to complete the Services within the time frame stipulated in the Proposal as a result of such delays.
(b) The Client shall provide, at its own cost, any equipment, materials or personnel specified for it in the Proposal. The Client represents that it has obtained any and all necessary consents and/or licenses required to enable the Supplier to conduct flight activities over the property identified in the Proposal and that the Supplier’s flight and imaging activities over such property shall not subject the Supplier to any nuisance, trespass, invasion of privacy or other claims by any third party. The Client shall defend, indemnify and hold the Supplier harmless from and against any and all claims, losses, suit, costs, including without limitation reasonable legal fees, damages or liabilities of whatsoever kind arising from any breach of the foregoing. In addition, the Client shall provide all letters of introduction which may be required to facilitate the Supplier’s undertaking of its obligations.
3 INVOICING & PAYMENT
(a) The fees and disbursements set out in the payment schedule contained in the Proposal are due and payable on the relevant payment date(s) reflected in that payment schedule. Where no payment date(s) are specified, fees and disbursements are due and payable on presentation of an invoice.
(b) If a deposit is payable, the Supplier will not be obliged to undertake any of its obligations until the deposit has been paid.
(c) If an interim progress payment is payable, the Supplier will not be obliged to undertake any of its further obligations until the interim payment has been made.
(d) In the event of the Client failing to pay any amount when due, the Client will indemnify the Supplier against any costs incurred, including all attorney and own client costs, to collect amounts owed. The Supplier reserves the right to charge interest on a monthly basis at the rate of 10% above the prime overdraft rate charged by the Supplier’s bankers per annum on amounts overdue.
(e) All amounts are –
(i) exclusive of GST;
(ii) expressed in Australian dollars, unless indicated to the contrary in the Proposal; and
(iii) exclusive of any taxes, levies or other charges imposed by a foreign government on foreign contractors providing services in the country concerned. These taxes, levies or charges shall be for the account of the Client.
(f) If an invoice is not paid in accordance with its payment terms that will constitute a material default by the Client and without limiting the Supplier's other rights the Supplier may immediately suspend any or all Services until the Client has remedied all defaults to the Supplier's satisfaction.
(g) Without limiting any other provision of this Contract, the Client agrees that a certificate purporting to be signed by or on behalf of the Supplier and certifying an amount due to the Supplier by the Client at any time, will be prima facie proof (until the contrary is proved) of the amount that is due and that it is due.
4 SITE INSPECTION AND INVESTIGATION
(a) Prior to or while performing Services, the Supplier may (itself or through its representatives) conduct a safety assessment and inspection of the Client’s premises and any other place where Services will be performed to satisfy itself that its workers will not be exposed to hazards during assignments with the Client. The Client must do all things reasonably requested by the Supplier to facilitate any such inspections and assessments.
(b) During the term of this Contract, the Client shall immediately notify the Supplier of any hazard, incident or unsafe work conditions on the Client's premises or any other place where any worker will perform work in connection with the Services for the Client. Following any such notification, the Supplier may (itself or through its representatives), in its absolute discretion, carry out inspections and an investigation into any hazard, incident or unsafe work condition that comes to the Supplier’s attention.
(c) Without limiting the Supplier's other rights, if the Client breaches clause 4(b) or if the Supplier determines that a worker will or may be exposed to hazards or unsafe work conditions in connection with the Client, the Supplier may immediately suspend any or all Services until the Client has remedied all issues identified by the Supplier to the Supplier's satisfaction and in accordance with the requirements of all Laws.
(a) At all times during the term of this Contract, the Client must obtain, and keep in force suitable public liability insurance, and such other insurance as the Supplier may reasonably require from time to time, on such terms and with such coverage as the Supplier may reasonably require from time to time. The Client must provide the Supplier with certificates of currency of those insurances prior to commencement of the Services.
(b) Nothing in this clause 5 limits the obligations, liabilities or responsibilities of the parties under this Contract.
(a) The Client must indemnify each Supplier Group Member against all Liabilities incurred or sustained in connection with:
(i) any breach of this Contract by the Client;
(ii) any act or omission of any Client Group Member; or
(A) damage to or loss or destruction of any asset or property of any person;
(B) death of or injury to any person; or
(C) breach of a Law,
if or to the extent that the Liabilities arise in connection with any act, error or omission of any Client Group Member.
If the Liabilities are caused by any act, error or omission of a Supplier Group Member then the Client's liability to indemnify that Supplier Group Member under this clause will be reduced proportionally to the extent that the Liabilities are caused by the act, error or omission of that Supplier Group Member.
(b) Without limiting any other provision, the Supplier shall not be liable to the Client (whether arising out of or in connection with the Contract, under statute, in tort (or any other basis in law or equity) for any loss of revenue, profit, indirect and consequential loss.
(c) Where the Supplier provides data, the Client specifically agrees that it is responsible for the correct interpretation of the data within the parameters provided by the Supplier.
(d) Where the Supplier provides advice, such advice is provided in good faith and the Client is required to make its own business decision as to whether to implement the advice. The Client acknowledges that all actions and judgements taken with respect to, or in reliance upon, the Services is the Client’s sole responsibility and the Client shall be solely responsible for the use of the imagery and other data provided under the Services and any liability arising from or related to such use.
(e) If the Corporations Act 2001 or any other legislative provision prohibits or otherwise precludes the restriction, modification or exclusion of any statutory condition, warranty, guarantee, right, remedy or other benefit, this Contract does not restrict, modify or exclude it. Unless prohibited by law, no term, condition or warranty is implied except as expressly provided in this Contract.
(f) The Client (and any others for whom Services are provided) may not recover from the Supplier, in contract or tort (including negligence), under statute or otherwise, aggregate damages (including interest and costs) in excess of three (3) times the fees actually paid for the Services that directly caused the loss in connection with claims arising out of this Contract or otherwise relating to the Services.
(g) If a term is implied into this Contract by law, which cannot be excluded, you agree that in the event that the Supplier breaches the term it may, in its absolute discretion and to the extent it is allowed by law, choose either to re-supply the Services or pay the Cleint the cost of having the Services re-supplied.
7 INTELLECTUAL PROPERTY RIGHTS
(a) The Client acknowledges that the Supplier remains the owner of the Supplier’s Background IP.
(b) The Supplier acknowledges that the Client remains the owner of the Client’s Background IP.
(c) The Supplier grants to the Client a non-exclusive and royalty free licence for the Client to use the Supplier’s Background IP to the extent necessary to make use of the Services.
(d) The Client may not assign or grant a sub-licence of the licence granted to it under clause 7(c).
(e) The Client acknowledges and agrees that all Project IP is vested in the Supplier and is the Supplier’s property as and when created and the Client hereby assigns all rights, title and interest in and to the Project IP to the Supplier.
(f) The Client grants to the Supplier a non-exclusive, non-transferable and royalty free licence to use the Client’s Background IP for the sole purpose of providing the Services.
(g) The Client must not disclose, reproduce or otherwise deal with the Project IP or Supplier’s Background IP, or allow any other person to do the same, for any purpose other than to make use of the Services.
(h) The Client agrees to:
(i) notify the Supplier as soon as it becomes aware of any suspected, threatened or actual infringement of any Intellectual Property Rights in the Project IP or the Supplier’s Background IP;
(ii) provide all assistance the Supplier may request to protect the Intellectual Property Rights in the Project IP or the Supplier’s Background IP; and
(iii) provide all assistance in defending or prosecuting (as the case may be) any such infringement.
(i) The Client's obligations set out in this clause 7 survive the suspension, termination, expiry or completion of this Contract.
This Contract terminates in any one of the following ways:
(a) The Contract automatically terminates on completion of the Services unless sooner terminated below.
(b) The Supplier may terminate the Contract with immediate effect by giving written notice of termination to the Client if:
(i) the Client breaches any of the provisions of clause 7 (Intellectual Property Rights);
(ii) the Client breaches any other provision of this Contract and fails to remedy the breach within 14 days after receiving written notice specifying the breach and requiring it to be remedied;
(iii) the Client ceases to carry on business;
(iv) any step is taken to enter into any arrangement between the Client and its creditors;
(v) the Client becomes unable to pay its debts as they become due and payable;
(vi) any step is taken to appoint a receiver, a receiver and manager, a trustee in bankruptcy, a liquidator, a provisional liquidator or other like person of the whole or any part of the Client's assets; or
(vii) the Client is guilty of any act, neglect or default or conduct which in the reasonable opinion of the Supplier has had or is likely to have, the direct or indirect effect of causing material damage or discredit to the Supplier or the business engaged in by the Supplier.
(c) The Client may terminate the Contract with immediate effect by giving written notice of termination to the Supplier if:
(i) the Supplier breaches any provision of this Contract and fails to remedy the breach within 14 days after receiving written notice specifying the breach and requiring it to be remedied;
(ii) the Supplier ceases to carry on business;
(iii) any step is taken to enter into any arrangement between the Supplier and its creditors;
(iv) the Supplier becomes unable to pay its debts as they become due and payable; or
(v) any step is taken to appoint a receiver, a receiver and manager, a trustee in bankruptcy, a liquidator, a provisional liquidator or other like person of the whole or any part of the Supplier's assets.
(d) Termination of this Contract does not release a party from complying with the provisions of this Contract that survive termination of the Contract.
9 OTHER GENERAL PROVISIONS
The Client acknowledges, agrees and declares that this Contract and all information or other data of or relating to any Supplier Group Member is provided to, or otherwise received by, the Client 'in confidence' and the Client owes an equitable duty of confidence in respect of same during the term of the Contract and after its suspension, termination, expiry or completion.
Without limiting the Client's other obligations under this Contract, the Client represents that at the date of this Contract, there is no relationship between any Client Group Member and any Supplier Group Member that gives rise to an actual or potential conflict of interest.
(i) Unless the context otherwise requires, words or expressions which are defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) have the same meaning in this clause.
(ii) If a party (Taxable Supplier) makes a taxable supply under or in connection with this Contract, the recipient of the supply (Taxable Recipient) must pay the Taxable Supplier an additional amount equal to the GST payable on that supply. If the Supplier becomes liable to pay any tax (including any tax in the nature of a goods and services tax), rate, levy, impost or duty (other than GST or a tax on the net overall income of the Supplier) in relation to its supply of the Services to the Client under this Contract, or any interest, penalty, fine or expense relating to any of them (Other Taxes), the Client must pay the Supplier the amount of those Other Taxes. Any GST or Other Taxes payable must be paid at the same time as the GST exclusive consideration is paid or three days before the Other Taxes become due (whichever occurs first).
(iii) If a payment to a party under this Contract is a reimbursement or indemnification, calculated by reference to a loss, cost or expense incurred by that party, then the payment will be reduced by the amount of any input tax credit to which that party, or the representative member of the GST group that party is a member of (as the case may be), is entitled for that loss, cost or expense.
(iv) If an adjustment event occurs in relation to a taxable supply made under or in connection with this Contract then:
(A) if the adjustment event gives rise to an increase in the GST payable by the supplier in relation to the supply, a payment equal to that increase will be made by the recipient to the supplier;
(B) if the adjustment event gives rise to a decrease in the GST payable by the supplier in relation to the supply, a payment equal to that decrease will be made by the supplier to the recipient;
(C) the supplier must issue an adjustment note to the recipient within 7 days of the adjustment event occurring or otherwise as soon as it becomes aware of the adjustment event; and
(D) any payment under this clause must be paid to the supplier or recipient (as the case may be) within 15 days of the adjustment note being issued by the supplier.
9.4 DISPUTE RESOLUTION
(i) If a dispute difference of opinion or question arises between the parties in relation to the Contract (Dispute), a party to the Dispute must comply with this clause before starting court proceedings (except proceedings for interlocutory or urgent relief) unless another party to the Dispute has not complied with this clause.
(ii) A party claiming a Dispute has arisen must give the other parties to the Dispute notice setting out details of the Dispute. During the 14 days after such a notice is given (or longer period if the parties to the Dispute agree in writing), each party to the Dispute must use its reasonable efforts to resolve the Dispute. If the parties to the Dispute have not resolve the Dispute within that period, they must refer the Dispute to a mediator if one of them requests that within 7 days of the expiration of that period.
(iii) If a party to a Dispute requests that the Dispute is referred to mediation but the parties to the Dispute do not agree on a mediator within 7 days after the request, the chairman of the Resolution Institute (or the chairman's nominee) will appoint a mediator. Each party to the Dispute must pay its own costs of complying with this clause. The parties to the Dispute must equally pay the costs of any mediator.
(iv) The role of a mediator is to assist in negotiating a resolution of a Dispute. A mediator may not make a binding decision on a party to the Dispute, except if the party agrees in writing.
(v) If a Dispute has not been resolved through mediation within 60 days of a party to the Dispute requesting mediation, any party to the Dispute is free to initiate court proceedings.
(vi) The parties must continue to perform their respective obligations under this Contract pending the resolution of a Dispute.
(i) The Client cannot assign, novate, charge or otherwise deal with any of its rights under this Contract without the prior consent of the Supplier.
(ii) The Supplier may assign, novate, charge or otherwise deal with any of its rights or obligations under this Contract without the prior consent of the Client.
Any notice, demand, consent or other communication (including emails) given or made under this Contract must be in writing, clearly readable, signed by the party giving or making it (or signed on behalf of that party by its authorised representative).
9.7 GOVERNING LAW
The Contract is governed by and must be construed and enforced in accordance with the laws of the State or Territory in Australia where the Client conducts business and the parties unconditionally submit to the exclusive jurisdiction of the courts of the State or Territory in Australia (and courts of appeal from them) where the Client conducts business.
Any provision in this Contract which is invalid or unenforceable in any jurisdiction is to be read down for the purposes of that jurisdiction, if possible, so as to be valid and enforceable, and is otherwise capable of being severed to the extent of the invalidity or unenforceability, without affecting the validity or enforceability of that provision in any other jurisdiction.
9.9 RIGHT OF SET OFF
The Supplier may at any time, deduct from any amount due or becoming due to the Client under the Contract to meet all debts and amounts due from the Client to the Supplier whether under or in connection with the Contract or otherwise.
9.10 FURTHER ACTS AND DOCUMENTS
Each party must promptly do all further acts and execute and deliver all further documents (in form and content reasonably satisfactory to that party) required by relevant Laws or reasonably requested by the other party to give effect to this Contract.
The non-exercise of or delay in exercising any power or right of a party does not operate as a waiver of that power or right, nor does any single exercise of any power or right preclude any other or further exercise of it or the exercise of any other power or right. A power or right may only be waived in writing, signed by the party to be bound by the waiver.
9.12 FORCE MAJEURE
Neither the Supplier nor the Client shall be liable for breach of this Contract (other than payment obligations) caused by circumstances beyond their reasonable control including a pandemic.
9.13 ENTIRE AGREEMENT
The Contract contains the entire agreement between the parties concerning its subject matter and supersedes all prior arrangements, letters of intent, memorandums of understanding, purchase orders, representations and documents (if any) relating to the Services (including any terms and conditions proposed or delivered to the Supplier by the Client) or the Contract.
9.14 NO MERGER
The rights and obligations of the parties will not merge on completion of any obligation or transaction under this Contract.
The parties mutually acknowledge and agree that this Contract must not be construed as constituting an association, company, agency, joint venture, partnership or relationship of employment between the parties.
This Contract may be accepted in writing or by conduct by the Client by giving or continuing to give the Supplier instructions to provide the Services.
In the interpretation of the Contract:
(i) words in the singular include the plural and words in the plural include the singular;
(ii) words importing a gender include all genders;
(iii) a reference to a statute or statutory provision includes:
(A) a statutory provision which supplements, amends, extends, consolidates or replaces it; and
(B) any applicable orders, regulations, instruments or other delegated legislation;
(iv) another grammatical form of a defined word or expression has a corresponding meaning;
(v) a reference to a clause, paragraph, schedule or annexure is to a clause or paragraph of, or schedule or annexure to, this Contract;
(vi) a reference to a document or instrument includes the document or instrument as novated, altered, supplemented or replaced from time to time;
(vii) a reference to A$, $A, dollar or $ is to Australian currency;
(viii) a reference to time is to Australian Western Standard Time;
(ix) a reference to a party to a document includes that party's executors, administrators, successors and permitted assigns and substitutes;
(x) a reference to a right or obligation of any two or more persons confers that right, or imposes that obligation, as the case may be, jointly and severally;
(xi) a reference to a person includes a natural person, partnership, corporation, association, governmental or local authority or agency or other entity;
(xii) including (in any form) or such as when introducing a list of items does not limit the meaning of the word to which the list relates to those items or to items of a similar kind; and
(xiii) if a day on or by which an obligation must be performed or an event must occur is not a Business Day, the obligation must be performed or the event must occur on or by the next Business Day.
In the Contract:
associate has the meaning given to that term in the Corporations Act 2001 (Cth).
Business Day means a calendar day ending at 5.00pm, other than a Saturday, Sunday or public holiday in Perth, Western Australia, Australia.
Claims includes an allegation, claim, notice, demand, action, proceeding, litigation, suit, investigation or judgment however arising, whether present, unascertained, immediate, future or contingent, whether based in contract, tort, statute or otherwise and whether involving a third person or a party.
Client means the person, firm, organisation, partnership, corporation, trust or other entity engaging the Supplier to provide Services, as named in the Proposal.
Client’s Background IP means the Client Intellectual Property Rights, which are in existence at the date of this Contract or
come into existence after the date of this Contract otherwise than in connection with the Contract.
Client Group Members means each of the Client, every past or present associate of the Client and every past or present officer, employee, agent, representative, contractor, licensee or sub-licensee of the Client or any past or present associate of the Client.
Contract means this document together with the Proposal and any other document that the Supplier determines forms part of the Contract.
Intellectual Property Rights means all copyright and analogous rights, all rights in relation to inventions (including patent rights), plant varieties, registered and unregistered trademarks (including service marks), registered designs, confidential information (including trade secrets), know-how, circuit layouts and all other rights throughout the world resulting from intellectual activity in the industrial, scientific or artistic fields.
(a) Acts, ordinances, regulations, by-laws, orders, awards and proclamations of the Commonwealth and the State or Territory applicable to the Services or this Contract and its subject matter;
(b) certificates, licences, consents, permits, approvals and other requirements of organisations having jurisdiction applicable to the Services or this Contract and its subject matter;
(c) Australian Standards and any other relevant standards;
(d) the Codes of Practice of the State or Territory applicable to the Services or work to be performed by the workers for the Client and other appropriate codes for the industries in which the Client operates; and
(e) fees and charges payable in connection with the foregoing.
Liabilities includes losses, damages, costs, charges, expenses (including legal costs on a full indemnity basis), outgoings, penalties, interest and fines of whatever description, including those arising as a result of Claims.
Project IP means all Intellectual Property Rights (present or future) created, discovered or coming into existence as a result of, for the purpose of, or in connection with, the provision of any Services or this Contract;
Proposal means the proposal provided to the Client by the Supplier to carry out the Services
Services means the provision of Services by the Supplier including the provision of images and other data produced and resulting from the Supplier’s performance of airborne imaging services and the provision of information, data, and/or studies relating to any specified project as requested by the Client and confirmed in a Proposal.
Supplier means Outline Global Pty Ltd (ACN 122 481 341).
Supplier’s Background IP means the Supplier Intellectual Property Rights, which are in existence at the date of this Contract or
come into existence after the date of this Contract otherwise than in connection with the Contract.
Supplier Group Members means each of the Supplier, every past or present associate of the Supplier and every past or present officer, employee, agent, representative, contractor, licensee or sub-licensee of the Supplier or any past or present associate of the Supplier.