1. Scope of application
These General Terms and Conditions ("Terms") shall apply between CX Lavender Pty Ltd (ACN 079 608 709) ("CX Lavender") and the Client to all (oral or written) offers, bids, proposals, job order forms and statements of work in the broadest sense of the word (hereinafter a "contract").
Subject to clause 1(c) the client expressly represents that it accepts these Terms to the exclusion of any general terms and conditions it uses, unless CX Lavender and the Client have expressly agreed otherwise in writing and in the event that the parties have agreed in writing that other terms and conditions shall apply, the latter terms and conditions shall apply only to the extent of and in respect of the specific order for which they have been agreed.
The parties agree that where they have agreed terms in a proposal or job order form, the terms of that document will prevail over these Terms, but solely to the extent of any inconsistency.
2. The formation of contracts
All of CX Lavender’s (oral or written) offers shall be free of obligation, unless a period has been agreed in writing for the acceptance or validity of any offer and CX Lavender shall nevertheless be entitled to revoke any offer within five working days of the date of the offer.
A contract shall be deemed to have been concluded and the work shall be scheduled in upon acceptance of the offer by the Client in writing or, in the absence of any offer, in the event that the Client gives CX Lavender an order for CX Lavender to provide goods or services (hereinafter an "order") and the Client accepts that order.
In the event that the Client cancels an order completely or in part after a contract has been formed, CX Lavender shall be entitled to charge the Client all the non-recoupable costs it has incurred and/or will incur in connection with the order and after a payment of the cancellation costs by the Client, CX Lavender shall surrender to the Client all the work-in-progress in relation to the order that was developed during the period prior to the cancellation, subject to these Terms.
The prices and rates shall be inclusive of the work to be carried out by CX Lavender as described in the offer, proposal or job order form.
All prices and rates shall be exclusive of GST and other governmentally-imposed charges and do not include costs for packaging, import, transport, travel and accommodation expenses, office costs, (technical) documentation, audio and/or visual material of third parties, purchase of hardware, software of third parties, training of the Client, installation, implementation and the like, unless as agreed otherwise in writing.
In the event the Client requests a change and/or addition to the specifications for the work to be produced and delivered by CX Lavender, it shall notify CX Lavender accordingly and CX Lavender shall then issue the Client with a price quotation and revised timelines for any additional work to be performed as a result of such change(s) and/or addition(s) and CX Lavender shall thereafter invoice the Client for this additional work.
CX Lavender shall not carry out any additional work without first receiving a corresponding written order from the Client.
In relation to a request for change/additional work, the most recent specifications will always prevail over older specifications.
CX Lavender shall at any time be entitled to adjust its prices or rates by means of a written notification to the Client and these new prices and rates shall be applicable to all the following offers, bids and contracts between CX Lavender and the Client.
Unless otherwise notified, all external suppliers sourced and managed by CX Lavender will incur a 10% fee on the external suppliers' costs, which reflects the administration, credit control and overall management of cash flow for payment of these suppliers.
Any cost estimate provided allows for three sets of low-to-medium level revisions between concept and production or coding stages and accommodate changes "within reason" which means simple additions and deletions to copy or small layout changes, being as a general rule, within 15% of the original work provided that changes greater than those “within reason” will attract the following additional charges: (i) small changes where the revisions affect 15-30% of the original work will incur a revision charge of 30% of the estimate; (ii) large changes where the revisions affect 30-60% of the original work, will incur a revision charge of 45% of the estimate; and (iii) major changes where the original work is changed by over 60% will incur a revision charge of 60% of the estimate, all as determined by CX Lavender, acting reasonably.
All invoices shall be paid by the Client in accordance with the payment conditions stated on the invoice but in the absence of specific conditions, the Client must make payment no later than thirty days after the invoice date (hereinafter the “payment period”).
If payment is not made in the payment period, the Client shall be in default and CX Lavender shall impose a late-payment interest fee of 1.5% per month calculated over the period the Client is in default, without any further notice.
If, after written notice of a payment default, the Client remains in default of its payment obligation, the claim may be put out for collection, in which case the Client shall also be required to make full payment for all collection and recovery costs incurred by CX Lavender, without prejudice to CX Lavender's other rights.
If payment is not made by any relevant payment deadline, CX Lavender is entitled to suspend its obligations pursuant to the contract and any other current contracts until full payment has been made, without prejudice to CX Lavender's right to damages and without any obligation to compensate the Client for any loss.
The Client may not set off any claim and each payment shall be considered to be applied first in payment of the claim outstanding for the longest period, even where the Client states that the payment pertains to a more recent claim.
CX Lavender reserves the right to return any goods, materials, equipment and the like which the Client may make available to CX Lavender, only after the Client has made full payment of all amounts owed.
Any delivery deadlines stated by CX Lavender have been fixed to the best of CX Lavender's knowledge and in accordance with CX Lavender's best intentions on the basis of the information of which CX Lavender was aware at the time the contract was concluded. CX Lavender shall use reasonable commercial endeavours to observe such deadlines and, in the event, that the delivery of services or other items by a party will be delayed, or if a delay is foreseeable, the parties shall notify each other as soon as possible thereof.
Subject to clause 5(a), CX Lavender shall develop and deliver the work to the Client in accordance with the specifications, in the form, within the planning and on the delivery date as agreed between parties.
If at the Client’s request CX Lavender executes any specific changes and/or additions to the specifications for the work to be supplied, CX Lavender may – having first consulted the Client – postpone the delivery date of the work to the extent that this is required in order to execute the relevant changes or additions.
Except upon the basis of any intentional act or omission or gross negligence on the part of CX Lavender, CX Lavender's mere failure to meet any delivery deadline shall not put CX Lavender in default and shall not entitle the Client to terminate a contract and the parties shall in these circumstances consult as soon as possible in order to set a new deadline for delivery.
The risk of any partial or full loss of or damage to property forming part of the delivery items under any contract shall pass to the Client upon the departure of those items from the office and/or warehouse of CX Lavender.
6. Retention of title
CX Lavender shall retain title to any goods supplied as regards all claims against the Client it has or may obtain by virtue of (failure to comply with any obligation arising from) these Terms or the terms of any contract, proposal and/or job order form.
The Client shall not be entitled to encumber the goods that are subject to CX Lavender's retention of title, or to transfer title of these goods to any third party and shall not be entitled to exercise any licenses and/or rights of use granted by CX Lavender in relation to such goods.
7. Client cooperation
The Client shall always provide the necessary cooperation and make available all requisite data, information, documentation, materials software of third parties, assets and/or other materials which will be described in writing by parties (“the prerequisites”) for the proper performance of services to CX Lavender in a timely manner.
Furthermore, the Client will inform CX Lavender about its decisions, evaluate received documents and furnish all the requisite cooperation according to agreed timeframes in order to enable the CX Lavender to meet the delivery date.
The Client warrants to CX Lavender that it is entitled to provide all prerequisites it makes available to CX Lavender and shall indemnify CX Lavender against all liability arising from its use of those prerequisites in accordance with the Client’s instructions.
In the event that the Client fails to provide the cooperation or prerequisites referred to in this clause 7 at CX Lavender's disposal or fails to do so on time or in accordance with the arrangements made, or in the event that the Client otherwise fails to satisfy its obligations, after consultation with the Client, CX Lavender shall be entitled to suspend contract performance and the delivery date without being obliged to pay the Client any kind of compensation and CX Lavender is also entitled to charge any resulting costs and additional work in accordance with its regular rates.
If the employees of CX Lavender and/or third parties are to perform work, in the execution of a contract, at the Client's premises or at any other site designated by the Client, the Client shall be responsible for providing, at no charge, any facilities reasonably required by such employees.
8. Cooperation of third parties
If CX Lavender contracts out all or part of the supply of certain goods, the provision of certain services and/or work to one or more third party(ies), CX Lavender may, upon request of the Client, act as its agent lawful representative.
Any contracts to be concluded with any third party by CX Lavender on the Client's behalf in conformity with the provision of clause 8(a) (including but not limited to providers of any third party software and corresponding EULAs, such as, CMS, E-commerce, Marketing platform software, Map and location software and Search engine software), shall be deemed to have been concluded directly between the Client and any such third party and CX Lavender accepts no liability in the matter.
9. Competing and overlapping relationships
Due to convergence and the overlap of Clients’ services, the competitive landscape is constantly evolving. As a CX agency involved in consulting, data, creative and technology, it makes it truly difficult to fully avoid any competitive conflict.
CX Lavender will use reasonable endeavours to comply with its competing and overlapping relationships policy as amended from time to time as provided here. Alternatively, CX Lavender will provide a physical copy upon written request.
10. Intellectual property rights
All property, right and title in and to any copyright or other intellectual property rights (“Rights”) subsisting in the Existing Material will remain the exclusive property of CX Lavender.
Subject to payment of all relevant Fees, all Rights in the Developed Materials will vest in the Client.
To the extent that any deliverable item incorporates any Existing Materials, CX Lavender grants to the Client a non-exclusive license to use the Existing Materials, but solely for the purpose of, and only to the extent required, to enjoy the benefits of the deliverable as contemplated under the relevant proposal document.
Notwithstanding anything to the contrary in these Terms, any proposal or other correspondence between the parties, CX Lavender shall not be restricted from using for its own benefit or for the benefit of a third party the knowledge and skill sets acquired in the course of performing services for the Client.
To the maximum extent permitted by law, the Client must not: reverse engineer, decompile or disassemble the whole or any part of the Existing Materials, or create derivative works based on the Existing Materials; permit or enable unauthorised access or use of the Existing Materials or accompanying written materials by third parties; or directly or indirectly allow or cause a third party to do any of those things, without CX Lavender’s prior written consent.
In these Terms: "Existing Materials" means all documents, creative, concepts, data, design, software systems, methods, processes, inventions, reports, databases, computer software, hardware and other information and intellectual property belonging to CX Lavender that CX Lavender makes available to the Client or otherwise employs for the purposes of performing the its services.
"Developed Materials" means any materials developed or created by CX Lavender in the course of, or associated with, its services (including without limitation all data and reports), solely for the Client but excludes any Existing Materials (or enhancement or modifications of Existing Materials).
"Deliverable" means any deliverable item or material identified in an agreed contract, proposal or job order form between the parties.
11. Right of Use
Without prejudice to the provisions in clause 10, Intellectual Property of these Terms, CX Lavender shall grant the Client the non-exclusive right to use the software in Existing Materials, which right shall pertain exclusively to the right to load and run the software.
The source codes of the software and the technical documentation produced in the development of the software shall not be supplied to the Client and in case the Client wishes to have (technical) documentation, the Client should request for a price quotation of CX Lavender.
The Client shall return all the copies of the software in its possession to CX Lavender if the aforementioned right to use the software is terminated and if the parties have agreed that, at the end of the right of use, the Client shall destroy the copies in question, the Client shall provide CX Lavender with confirmation of such destruction without delay.
12. Maintenance/service level
Upon request of the Client the parties may conclude a separate support and maintenance and/or service level agreement. In the case of any inconsistency between that agreement and these Terms, the other agreement will prevail.
Whether during the term of the contract or otherwise, parties shall be required to maintain secrecy regarding the confidential information that comes to their knowledge, and not to disclose it in any manner to any third party (including but not limited to all persons working in the organisation of each party who do not need to be informed of the information) and/or to provide it for any use; other than the exclusive use for the purpose for which it was placed at its disposal.
Within the meaning of these Terms, the term "confidential information" shall be defined as: all information provided directly or indirectly in written, oral or other form which is designated as confidential and/or which the other party knows to be or should reasonably understand to be confidential;
all product, marketing, Client and/or other business information designated as such and/or which the other party knows to be or should reasonably understand to be confidential, regardless of the manner in which it has been provided; all documentation, data, drawings, benchmark test(s) and benchmark data, specifications, object codes, source codes, production methods, technologies and/or other information in connection with software (to be) developed by one party that is designated as confidential and/or which the other party knows to be or should reasonably understand to be confidential, regardless of the manner in which it has been provided; and any copy in any shape or form of the above.
The parties' obligations shall not apply in regard to confidential information where the receiving party can prove that: it is generally known and/or publicly available or;
it was already known to it and not subject to any confidentiality obligation prior to it being furnished to it by the other party.
The Client must ensure that all personal data provided by the Client for processing purposes is collated and managed in accordance with all of the applicable privacy laws.
This clause 13 shall remain in effect for a two-year term (subject to a one-year extension if the parties are still discussing and considering the work at the end of the first year). Notwithstanding the foregoing, the parties’ duty to hold in confidence Confidential Information that was disclosed during the term shall remain in effect indefinitely.
To the maximum extent permitted by law, either party’s total liability under these Terms shall be limited to the direct damage up to an amount which is the lesser of the amount paid by the Client for CX Lavender’s services giving rise to the liability or AU$1,000,000 (one million Australian dollars). For the purposes of these Terms, "direct damage" of the Client shall be exclusively understood to mean: (i) the reasonable costs that the Client has been forced to incur in having the CX Lavender's performance satisfy the terms of the contract; (ii) the costs that the Client has incurred in connection with it having been necessary for it to keep its old system(s) and related facilities operational for a longer period due to CX Lavender not having effected delivery by or on an essential delivery deadline, minus any cost savings realised due to the delayed delivery; (iii) reasonable costs incurred in determining the cause and scope of the damage, to the extent that this determination concerns direct damage within the meaning of these Terms; (iv) reasonable costs incurred in preventing or limiting the damage, to the extent that the Client has acted properly in CX Lavender's interest.
Neither party shall be liable for indirect damage, which shall include but not be limited to consequential damage, loss of profit, lost savings, damage caused by business stagnation, missed contracts and/or damage to the reputation of the other party.
Parties’ total liability for damage caused by death or bodily injury or for physical damage to property shall be limited to AU$1,000,000 (one million Australian dollars) in total.
CX Lavender will not be responsible for any liability unless it is reported to CX Lavender in writing as soon as possible after the damage arises, and in any event no more than 90 days after the delivery date, or, in case the contract has been terminated prematurely, within 90 days of the date of termination of the contract.
CX Lavender shall not accept any liability for any damage caused by goods supplied by or through CX Lavender being used in a manner other than the one agreed upon between the parties.
Any advice furnished by CX Lavender shall be to the best of CX Lavender's knowledge and the furnishing of advice by CX Lavender shall not release the Client from its obligation to carry out its own research into the suitability of the goods and/or the services to be supplied for their intended purpose.
CX Lavender shall accept no liability whatsoever for the total or partial loss of content and/or data.
The Client shall indemnify CX Lavender against all claims by third parties resulting from a defect in a product or system that the Client has supplied or resulting from any other action or omission taken on behalf or on instruction of the Client.
The Client shall not, under any circumstances, use the services or facilities provided, including servers and storage facilities, to commit any offence or to cause any loss, nuisance or damage to CX Lavender or third parties and the Client shall hold CX Lavender harmless to all third-party claims incurred by CX Lavender in that respect.
15. Seeking to employ staff
To the maximum extent enforceable by applicable law, during the term of these Terms and for a period of twelve (12) months thereafter, neither party shall, directly or indirectly, for itself or on behalf of any other person: hire or solicit for hire any employee of the other party except through a general advertisement; in any manner attempt to influence or induce any employee of the other party to leave the employment of such party; or disclose to any person or entity any information obtained while rendering services to or receiving services from the other party concerning the names and addresses of the other party’s employees.
Both parties hereby acknowledge and agree that the restraints contained in this clause 15 are reasonable in scope and duration having regard to the interests of the parties to these Terms and go no further than is reasonably necessary to protect the business and commercial interests of the other party.
16. Force majeure
Neither party shall be liable for any failure to perform its obligations (other than obligation to make payment) under these Terms if prevented from doing so by a cause or causes beyond its reasonable control and without limiting the generality of the foregoing, such causes include acts of God or the public enemy, fires, floods, storms, earthquakes, riots, strikes, lockouts, acts of terrorism, wars or war operations, restraints of government or other cause or causes which could not with reasonable diligence be controlled or prevented by such party.
Either party may terminate these Terms if a force majeure event affecting the other continues substantially uninterrupted for a period of 60 days or more and unless terminated pursuant to the preceding sentence, any milestone dates or deadlines set out in a proposal or job order form will be automatically extended for a period up to the duration of the force majeure event.
17. Premature termination
If one of the parties, having received a written demand from the other party, continues to default on any of its essential obligations under a contract and/or these Terms, the party concerned shall be entitled, without further notice of default of the other party or court intervention and without prejudice to any of its statutory rights, to terminate the relevant contract with immediate effect and without being obliged to pay the breaching party any kind of compensation, by written notice.
Each party shall also, without prejudice to its statutory rights, be entitled to terminate a contract immediately on written notice if the other party applies for or is granted a (temporary) suspension of its payment obligations, applies for its own bankruptcy or is declared bankrupt, ceases its business operations, if a considerable part of its assets are attached, the legal entity status of the other party is dissolved or if control over or the majority voting rights in the other party’s legal entity come to rest with a third party.
18. Delivery, Installation and acceptance
If the parties have agreed in writing to the performance of an acceptance test, the Client shall have a period of ten working days as from the delivery of the deliverable in which to test whether the deliverable satisfies the specifications (the "test period").
The acceptance test shall take place in an environment as agreed between parties in advance and in accordance with an agreed procedure.
Acceptance of the deliverable may be withheld only on the grounds of the deliverable failing to satisfy the specifications, unless minor defects in the deliverable are involved, being defects which do not reasonably prevent the deliverable from being put into operational and/or productive use, and without prejudice to CX Lavender's obligation to remedy these minor defects at no charge.
If, during the test period, it becomes apparent that the deliverable does not satisfy the agreed specifications, the Client shall so notify CX Lavender in writing on, at the latest, the final day of the test period, describing the specifications which the deliverable does not satisfy ("the defects"), in which case the test period shall be interrupted and CX Lavender shall then proceed to remedy the defects specified in the aforesaid notification as quickly as possible and redeliver the deliverable to the Client, without this involving any costs for the Client.
At the time of the deliverable’s redelivery, the test period of 10 working days shall recommence.
Should the Client then encounter new defects in the software as a result of its not satisfying the specifications, i.e. defects that were not already present during the previous test period and which, therefore, the Client could not have reported to CX Lavender during the previous test period, the procedure described above shall be repeated.
The Client shall be deemed to have accepted the software: upon delivery, in cases where the parties have not agreed on an acceptance test; or upon expiry of the test period, in cases where the parties have agreed on the performance of an acceptance test; or once CX Lavender has remedied the defects reported in the notification; or by putting the deliverable into use.
If the deliverable is delivered and tested in stages and/or parts, the non-acceptance of a certain stage and/or part shall not prejudice any acceptance of another stage and/or part.
With respect to work consisting of the restoration of damaged and/or lost data, the Client should request for a price quotation of CX Lavender as well as for the repair of defects which result from changes which the Client has (had) made to or in the deliverable without CX Lavender's prior written consent and CX Lavender shall be entitled to charge its customary commercial rates and the repair costs if the defects in the deliverable have been caused by errors in using and/or the injudicious use of the deliverable and/or by other causes for which CX Lavender is not responsible.
For a period of one month after delivery or, if agreed on, the expiry of a test period, CX Lavender shall remedy for free any defects in the deliverable as a result of its not satisfying the specifications or (in as far as other criteria were agreed during the test period) its not satisfying the written acceptance report, if and to the extent that it is notified of these defects in writing by the Client within this period.
CX Lavender does not warrant that the deliverable will operate without interruption and/or defects and/or that it will be possible to repair all defects, nor does it make any representations or warranties that any information, of any form, provided or made available by it, is reliable, accurate, or complete. CX Lavender makes no guarantees of any specific result from use of the deliverables or any other information provided.
The Client shall be responsible for the correct and judicious use/application of the deliverable, as well as having control and security procedures and effective system management in place.
CX Lavender shall be entitled during the aforementioned warranty period to charge its customary commercial rates and the repair costs if the defects in the deliverable have been caused by errors in using and/or the injudicious use of the deliverable and/or by other causes for which CX Lavender is not responsible.
The warranty obligations shall lapse if the Client has made or has had changes made to or in the software without CX Lavender’s prior written consent and the restoration of damaged or lost data shall not fall within the scope of the warranty obligations. Defects shall be repaired at a location to be determined by CX Lavender. CX Lavender shall be entitled at its own discretion to introduce definitive or temporary solutions or program detours and/or problem-avoiding restrictions into the deliverable. After expiry of the warranty period described in this clause, CX Lavender shall not be obliged to repair any defects in the deliverable, unless the parties have concluded a maintenance or service level contract for this purpose.
These Terms along with any agreed proposal, job order form and/or contract constitutes the entire agreement between the parties, supersedes any previous agreement or understanding and may not be varied unless agreed to in writing by both parties. All other terms and conditions express or implied by statute or otherwise, are excluded to the fullest extent permitted by law.
Unless otherwise agreed in writing by both parties these Terms will apply every time CX Lavender is retained by the Client to perform services at any time in the future.
Any notice required or permitted to be given by either party to the other under these Terms will be in writing addressed to the other party at its registered office or principal place of business or such other address as may at the relevant time have been notified, pursuant to this provision, to the party giving the notice.
No failure or delay by either party in exercising any of its rights under these Terms will be deemed to be a waiver of that right, and no waiver by either party of any breach of these Terms by the other will be considered as a waiver of any subsequent breach of the same or any other provision. If any provision of these Terms is held by any competent authority to be invalid or unenforceable in whole or in part, the validity of the other provisions of these Terms and the remainder of the provision in question will not be affected. Nothing in these Terms will create or constitute or be taken to create or constitute a partnership, joint venture or agency between the parties. The Client may not assign, novate or otherwise transfer any of its rights or obligations under this Agreement without the prior written consent of CX Lavender. Any term or warranty in these Terms will survive the expiry of termination of these Terms which is necessary in order to give effect to its provisions needs to survive the said expiry or termination. The law of New South Wales will apply to these Terms, and the parties agree to submit to the non-exclusive jurisdiction of the courts of New South Wales.
Each party represents and warrants to the other that the person who signs any job order form or proposal is duly authorized by the Client to do so and that by signing the same, the Client also agrees to be bound by these Terms and altogether this Agreement is valid, binding and enforceable upon such execution.