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Atarix Pty Ltd
We, us or our is a reference to Atarix Pty Ltd;
You or your is a reference to the person to whom we are providing our Services and who is required to pay for the Services we provide;
Materials means any materials, goods, parts or items we need to buy in order to perform the Services;
Parties is a reference to both us and you;
Premises means the place where we will provide the Services;
Services means the assistance we will provide in connection with offerings requested by the client. The precise Services we will be providing to you will be stated in the Statement of Work and the Support Service Level Agreements and as we agree from time to time.
2.1 Our letter of engagement to you (“the Client”) for each matter in which you request our services (“Statement of Work”, “Proposal” or “Quote”) and these standard terms and conditions of engagement (“Standard Terms”) of Atarix Pty Ltd (“Atarix” ), including any written variation (together called “this Agreement”) will apply to the work to be performed for you as described in the Statement of Work (the “Services”).
2.2 The Client acknowledges that Atarix is engaged under this Agreement as an independent contractor. No person is authorised to give any representations on behalf of Atarix except as set out in the Agreement and any such representations, which have been or may be given cannot be relied upon and are void.
2.3 This Agreement constitutes the entire agreement between Atarix and the Client. Where there is any inconsistency between the Statement of Work and these terms, the Statement of Work will prevail.
2.4 In the event that any of the terms of this Agreement are or become invalid, illegal or unenforceable, the remainder survive unaffected.
2.5 The offer contained in the Statement of Work must be accepted by the Client in writing. Notwithstanding, we will treat the terms of this Agreement as accepted by you if you continue to request or use our services.
2.6 This Agreement may only be varied by offer made and accepted via email, or otherwise in writing signed by the Client and an authorised officer of Atarix.
2.7 Atarix confirms that any Statement of Works, Proposals or Quotes are valid for a period of 30 days from the date of issue.
2.8 The Client should keep a copy of these terms and conditions for your records.
3. Obligation of Client
3.1 The Client agrees to pay for the Services described in the Statement of Work within timeframes specified, adhering to any payment milestones.
3.2 The Client will provide promptly to Atarix all reasonable and necessary assistance, including access to all information which Atarix considers to be relevant to the provision of the Services, so as to enable Atarix to provide the Services. The Client must update information provided by it to Atarix where there has been a material change to that information (including but not limited to that information becoming untrue or misleading) which affects the scope or performance by Atarix of the Services.
3.3 The Client will make available all required personnel and manage all contractors, or third parties required to have input and contribute to the outcomes in the Statement of Work.
4. Obligation of Atarix
4.1 to perform the Services at the Client’s address in Contract Details or such other address agreed by the Client and Atarix;
4.2 to devote the time, attention, skill and ability required to properly perform the Services and to provide the Services with all due care and skill and in a professional, competent and timely manner;
4.3 to comply with all applicable laws and regulations, and all Client’s relevant policies and procedures that have been provided to Atarix prior to entry of this agreement (including those regarding occupational health and safety, anti-discrimination, sexual harassment, security, and privacy).
5. Professional Fees and Payment Terms
5.1 The Term of this Agreement commences on the Commencement Date and continues for the Term specified in the Engagement Agreement. The Term for the service shall be for the duration as specified within the contract details. Before the end of the term, the parties may agree to extend the duration of these services on the same terms and conditions.
5.2 Unless otherwise specifically agreed in writing via a revised Statement of Work, Atarix fees will be based on hourly rates which take account of the level of personnel assigned to the engagement. If an estimate of fees has been provided by Atarix to the Client, Atarix will advise the Client if it considers the estimate is likely to be exceeded.
5.3 The Client agrees to pay any tax or other charge imposed on Atarix (now or in the future) in relation to any transactions arising in connection with, or as an outcome of, this Agreement. This includes (but is not limited to) any goods and service tax (“GST”) imposed under the (Goods and Service Tax) Act 1999 (Commonwealth) as amended. Any fees charged by Atarix under this Agreement will be initially calculated exclusive of GST. Where GST is payable on any supply provided under this Agreement, the Client agrees that the fee payable for this supply will be increased by an amount equivalent to the GST payable by Atarix in respect of that supply.
5.4 If either Atarix or the Client terminate this Agreement, for the reasons set out in the Statement of Work or for any other reason that justifies termination, Atarix is entitled to its fees and expenses incurred up to the termination date whether or not a taxation invoice has been provided at time of termination.
5.5 Disbursements paid or incurred by Atarix on behalf of the Client are separate to Atarix’s professional fees. Disbursements include photocopying, hosting, software license fees, printing, telephone calls, postage, couriers, travel fares, accommodation, parking, data connectivity, meals, room and facility costs, costs of materials and third party supplied items and support and desktop publishing services. For travel disbursements, Atarix’s standard policies apply which are to use business class within Australia for flights of duration greater than two hours (otherwise economy class shall be used) and business class or equivalent for overseas air travel greater than 4 hours (otherwise economy class shall be used). All disbursements will be charged at cost and added to our tax invoices. If required Atarix can summarise disbursements by classification e.g., travel, accommodation.
5.6 Atarix will issue invoices monthly or as indicated in the Statement of Work. Except where the Statement of Work states otherwise invoices are payable within 14 days of invoice date. Atarix reserves the right to charge interest on overdue amounts at the rate being two (2) percentage points above the overdraft rate charged on overdraft accounts over $100,000 by the Commonwealth Bank of Australia from time to time.
6. Unavoidable Delays
6.1 Atarix is not liable for any failure or delay in providing the Services if caused, or contributed to, by an act or event (including the non-performance of the Client’s obligations) that is beyond the control of Atarix or was not foreseen at the time of entering into this Agreement. Atarix will advise the Client of the delay and cause. Atarix is entitled to review its fees where such delays occur and will charge fees at the prevailing hourly rate according to grade and experience of the Atarix team member.
7.1 After the Initial Term (or any renewed Term), this Agreement continues for a further Term of 24 months, unless either party gives the other party written notice not to renew this Agreement at least prior to the end of the Term (or the renewed Term), as the case may be. If the agreement is not to be renewed, then this Agreement shall accordingly expire on that anniversary of the Commencement Date.
The pricing schedule is subject to review upon agreement renewal and will take into account CPI increases.
8. Confidentiality and Privacy
8.1 Neither party is permitted, without the prior written consent of the supplying party, to disclose or communicate to any third party or to their employees, servants, agents, contractors or consultants any Confidential Information or use any Confidential Information for any purpose except for the purpose for which such Confidential Information was supplied or for the proper performance of this Agreement. Confidential information shall be deemed financial information or information not deemed available in the public domain or information which is marked ‘confidential’.
8.2 Each party agrees that the documents attached to or incorporated in this Agreement by reference are confidential and must not be disclosed to any person (other than a party’s legal or financial advisors or as required by law) without the prior written consent of the other party.
8.3 Atarix may wish to obtain publicity for work undertaken on behalf of its clients. Permission to attribute work for the Client publicly will always be obtained in advance. Notwithstanding this condition, Atarix assumes the right to use references in proposals or other similar submissions made to other prospective clients, unless the Client expressly prohibits such disclosure at the commencement of the Engagement.
8.4 Unless otherwise agreed, Atarix is authorised by the Client to communicate or meet with any other person whom it may need to contact to perform the Services or who the Client requests Atarix to contact.
8.5 Under the Privacy Act 1988 (Commonwealth) (“Privacy Act”), Atarix is required to advise the Client that we collect information about the Client to assist Atarix in performing and promoting the Services. Generally, this information is collected through the communications Atarix has with the Client, but may also be obtained through other sources in the course of providing the Services. Atarix takes reasonable measures to ensure such information is accurate and held securely. Atarix will not disclose information about the Client to any person except in the course of providing the Services or for the ordinary administration of Atarix’s business, unless permitted or authorised to do so under the Privacy Act or other applicable law.
8.7 Atarix agrees to follow all reasonable requests by the Client to implement security practices, tools or software necessary to secure Personally Identifiable Information (PII), confidential information and the intellectual property of the Client or its clients.
8.8 The operation of this clause survives the expiry or earlier termination of this Agreement.
9. Copyright and Intellectual Property
9.1 For the purposes of this clause, the term “Intellectual Property Rights” means any rights in relation to copyright (including future copyright), trademark, patent, design, (whether registered, unregistered, unregistrable or applied for), trade, business, company or domain name, know-how, methodology, inventions, processes, confidential information (whether in writing or recorded in any form); and any other proprietary, licence or personal rights arising from intellectual activity in the business fields whether first made or created before or after the date of the Client’s acceptance of this Statement of Work, and whether existing in Australia or elsewhere.
9.2 Each party shall retain ownership of all right, title and interest in Intellectual Property created by the respective party prior to the Agreement (“Pre-existing IP”), subject to any license grants under a separate IP License Agreement.
9.3 All right, title and interest in new Intellectual Property created by Atarix for the Client as part of this Agreement shall be assigned to the Client, excluding any Pre-existing IP of Atarix or third-party software products, components or modules used as part of the services delivered under this Agreement.
9.4 You acknowledge that Atarix will retain and may continue to use any knowledge, experience and know-how developed in the course of performing the Services, including the use of any ideas, concepts, know-how or techniques developed or disclosed in the performance of the Services for development of materials or providing services for itself or for others.
10. Limitations on Liability
10.1 Atarix shall perform all services using the same level of care that is expected in the industry. However, in no event shall Atarix be held liable for indirect, special, incidental or consequential loss or damages, arising out of service provided hereunder, including but not limited to loss of profits or revenue, goodwill, bargain, opportunities or anticipated savings, loss of use of equipment, lost data, costs of substitute equipment, or other costs and damages arising from breach of contract, negligence or any other tort, in equity or under an indemnity, warranty or otherwise, whether or not Atarix was aware of the possibility of such loss or damage.
10.2 To the fullest extent permitted by law, the parties agree to exclude all express or implied warranties, representations, statements, terms and conditions relating to Atarix or the provision of the Services under these terms, not expressly set out in these terms, are excluded from the agreement between the parties.
10.3 Atarix will not be liable for any failure or delay in providing the Services where such failure or delay is the direct or indirect result of any action by or the failure of the Client to comply with this Agreement.
10.4 This limitation does not apply in relation to liability for:
10.4.1 personal injury, including sickness and death;
10.4.2 loss of, or damage to, tangible property; or
10.4.3 an indemnity provided under this Services Agreement.
11.1 To the extent permitted by law, the Client agrees to indemnify Atarix and its partners and employees against all losses, liabilities, claims, costs or expenses incurred by Atarix in respect of any claim or action by a third party arising from or in connection with the provision of the Services. This indemnity does not apply to any liabilities, costs or expenses incurred in defending a claim by a third party which results from any wilful misconduct by Atarix or its partners and employees.
11.2 Atarix is not liable for any losses, damages, costs or expenses arising out of errors due to the provision to it of false, misleading or incomplete information or documentation or due to any acts or omissions of any other person. The Client indemnifies Atarix from any liability it may have to the Client or any third party as a result of any information supplied to Atarix by the Client or any of its agents, where such information and documentation is false, misleading or incomplete in a material respect.
12.1To the extent permitted by law, the Client may end this Agreement upon ninety (90) days written notice if Atarix:
12.1.1 Fails to fulfil in any material respect its obligations under this Agreement and does not cure such failure within 90 days of receipt of such written notice.
12.1.2 Breaches any material term or condition of this Agreement and fails to remedy such breach within 90 days of receipt of such written notice.
12.1.3 Terminates or suspends its business operations unless it is succeeded by a permitted assignee under this Agreement.
12.2 Atarix has a right to end this Agreement and cease acting for the Client or suspend its Services if:
12.2.1 any amount we have invoiced to you remains unpaid more than 30 days after the date of issue of the relevant invoice;
12.2.2 we form the view that it is not in your best interests for us to continue to act for you or on your behalf in relation to your Service; we form the view that we cannot continue to act for you or on your behalf in relation to your Project in a manner that is consistent with our professional obligations;
12.2.3 if in Atarix’s view the necessary relationship of confidence no longer exists between the parties, or if Atarix thinks it appropriate, in consideration of the professional conduct rules and ethical standards under which it practices.
12.3 If either party breaches any provision of this Agreement, the other party may:
12.3.1 Suspend provision of the Services or payment of any amounts otherwise due (as the case may be) until the breach is remedied by the party in breach; and
12.3.2 Terminate this Agreement, if the party in breach remains in breach of any such provision after receiving at least 90 days’ notice in writing from the other party identifying the breach and requesting its remedy.
12.4 If either party terminates this Agreement:
12.4.1 Atarix will assist the Client in the orderly termination of services, including timely transfer of the services to another designated provider. The Client agrees to pay Atarix the actual costs of rendering such assistance.
12.5 If Atarix terminates this Agreement:
12.5.1 The Client must immediately pay to Atarix all unpaid fees and disbursements incurred prior to the date of termination together with any related GST.
12.5.2 The Client is not entitled to a refund or adjustment of any applicable Set-Up Fee or of any Service Charges paid to Atarix.
12.6 If the Client terminates this Agreement:
12.6.1 the Client is entitled to a pro-rata refund of any part of the Service Charges it has paid for Services to be supplied after the date of termination.
12.7 the Client will be responsible for the cost of our time in performing the Services up to the date we stop providing the Services; and any Materials we are contractually committed to buying up to the date of termination (whether or not we need to pay for them before or after the date the contract between us and you is terminated). Any Materials we have purchased (but not used in performing the Services) will be delivered to you.
13. Soliciting Employees or Contractors
13.1 During the term of this Agreement and for 6 months after termination by either party of this Agreement, a party must not employ or solicit for employment any person who is an employee of or contractor to the other party who was involved during the most recent 6-month period of this Agreement in the matters covered by this Agreement.
This does not apply where:
13.1.1 A person responds to an advertisement for employment by a party; or
13.1.2 The employment is agreed to by the parties.
13.2 Each party acknowledges that the restriction specified above is in the circumstances reasonable and necessary to protect each party’s legitimate interests.
14.1 During the Term, Atarix must supply the Services as detailed in the Sales Order to the Client and the Client must pay the Service Charges and any Additional Charges.
14.2 Our aim is to always provide you with the Services:
14.2.1 using reasonable care and skill;
14.2.2 in compliance with commonly accepted practices and standards in relations to the Services; and
14.2.3 in compliance with New South Wales laws and regulations in force at the time we are carrying out the Services.
14.3 Unless you and we agree otherwise, we will provide the Services on normal working days and start work no earlier than 9am and finish work no later than 5.30pm. A normal working day for us means Mondays to Fridays, excluding any bank or other national holidays.
14.4 The performance of some of the Services may take place away from the Premises.
15.1 Atarix warrants that it will provide the Services in a proper and professional manner and will ensure that the Services are performed by personnel who are suitably qualified to perform the Services.
15.2 The Client warrants that it has the appropriate licenses, rights and/or title to the maintenance and support services that are the subject of this Agreement.
16. Use of Reports and Advice
16.1 All communication by Atarix with the Client, its employees, or agents, whether written or oral are provided solely for the use of the Client in connection with this Agreement, and must not, without Atarix’s prior written consent be used for any other purpose or referred to in any document or made available to any other person (except the Client’s legal advisors or other professional advisors assisting in matters related to this Agreement). No other party is entitled to rely on Atarix’s reports or advice for any purpose whatsoever. Atarix disclaims any responsibility to any such third party who has relied upon advice or services provided by Atarix to the Client under this Agreement.
16.2 By entering into this Agreement you consent to us communicating with you electronically. If any report or correspondence containing opinions or advice is sent electronically, Atarix will not be responsible for any unauthorised copying, interception, interference, alteration or delivery failure of the transmission. Although Atarix uses its best endeavours, Atarix does not warrant that the electronic transmission is virus free or will not harm the Client’s computer systems.
16.3 Written advice and final reports take precedence over any oral advice and interim reports and no reliance should be placed by the Client on any such oral advice or interim reports. Atarix is not responsible for updating any opinions, advice or reports subsequent to the issue of a final version.
17. Amendments to the contract terms and conditions
17.1 We will have the right to amend the Services, terms and conditions of this contract or any service level agreements where:
17.1.1 We need to do so in order to comply with changes in the law or for regulatory reasons; or
17.1.2 We are changing the rates we charge for the provision of Services as provided for in clause 4; or
17.1.3 We need to correct any errors or omissions (and this right includes the right to change any of the documentation which forms part of the contract), as long as such correction is minor and does not materially affect the contract.
17.1.4 We need to make changes in unforeseen circumstances or any changes in your business operations or needs.
17.1.5 Where we are making any amendment, we will give you 30 days’ prior notice (unless the contract is terminated before that period).
18. Governing Law and Jurisdiction
18.1 The Agreement is governed and construed in accordance with the law of the state of New South Wales, Australia. Each party irrevocably and unconditionally submits to the exclusive jurisdiction of the Courts of New South Wales, Australia for determining any disputes or proceedings arising out of or in connection with this Agreement.