Standard Terms and Conditions for the Provision of Services
These are the standard terms and conditions for the supply of Services offered from time to time by Speedwell. These terms apply to you as a user of the Services (“Client”). Please read these terms and conditions carefully.
1. TERMS AND AMENDMENT PROCEDURE
1.1 These are the terms upon which Speedwell agrees to provide Services to the Client.
1.2 The agreement made between us on these terms commences on the date of acceptance under clause 5 and will continue until terminated in accordance with these terms.
1.3 Speedwell may vary these terms at any time by publishing a new terms and conditions document on the www.speedwell.com.au website.
1.4 These terms constitute the entire agreement of the parties about its subject matter and supersedes any previous understandings or agreements on that subject matter;
2.1 In this Agreement these words have these meanings.
(a) Authorised Representative means one of the Client’s Authorised Representatives as defined in sub-clause 5.1.
(b) Business Day means a day on which banks are open for commercial business in the city of Brisbane in the state of Queensland, Australia.
(c) Business Rule means a definition or constraint to some aspect of a business process or system. The rationale behind the rule can be driven by factors that are commercial, security or compliance in nature.
(d) Deliverables means Documentation, Services and Software as specified in a Work Order.
(e) Documentation includes:
(i) business analysis, project plans and budgets;
(ii) requirement, functional and technical specifications;
(iii) test plans and training documentation;
(iv) database and class designs; and
(v) system and network architecture diagrams.
(f) Extended Office Hours means the periods 6am to 8am, and 5pm through 9pm on a Business Day.
(g) Fees means the fees specified in a Work Order or as defined in sub-clauses 4.1 through 4.4
(h) Project Stages mean the stages specified in a Work Order for interim and final completion of the Services.
(i) Services means the Services and/or products as defined in separate Work Orders or as agreed between The Client and Speedwell from time to time.
(j) Software means application, website or intranet code defined by the Specifications and provided by Speedwell to The Client under the Services.
(k) Specifications means the functional requirements description of the project that is the subject of a Work Order.
(l) Speedwell means Speedwell Pty Ltd ABN 37 110 700 920 and Dossiere Pty Ltd ABN 16 155 914 766 collectively or individually
(m) Standard Office Hours means the times between the hours of 8am and 5pm on a Business Day.
(n) Work Order means a separate agreement between the parties that defines the cost, Deliverables and specific conditions of a project.
3. SCOPE OF THIS AGREEMENT
3.1 Speedwell shall provide Services to the Client pursuant to the terms and conditions set out in this Agreement.
3.2 Speedwell warrants that it is suitably qualified and experienced to perform its obligations under this Agreement, and the services to be provided by Speedwell under this Agreement will be provided by suitably trained and experienced staff and in a prompt and professional manner.
3.3 Speedwell enters this Agreement as an independent contractor. Nothing in this agreement constitutes or is deemed to constitute a party as the employee, partner, agent, joint venturer or representative of any other party.
3.4 Speedwell may appoint or engage subcontractors in undertaking the tasks outlined in this agreement provided that such appointments do not diminish, prejudice or otherwise adversely affect the performance of its obligations under this agreement.
3.5 The Deliverables will meet the Specifications subject to the Client meeting all Client Obligations and any changes authorised by the Client and accepted by Speedwell.
3.6 Speedwell will use reasonable endeavours to adhere to the Project Stages. If any stage of the project cannot reasonably be completed by an agreed date, Speedwell will determine in consultation with the Client the revised date for completion.
3.7 Installation of Deliverables will be in accordance with the responsibilities set out in a Work Order.
3.8 If the Client has elected to have the installation of the Deliverables carried out by Speedwell, the Client agree to give Speedwell such reasonable assistance, including the provision of personnel and facilities, as Speedwell may reasonably consider necessary to ensure satisfactory installation of the Deliverables.
3.9 If the Client has elected not to have the installation of the Deliverables carried out by Speedwell, then the Client is responsible for the installation of the Deliverables.
3.10 Unless otherwise agreed in writing, the Client is solely responsible for hosting and operating the Software, and must bear all associated costs, including acquisition of licences necessary to run the Software on the Client’s equipment or at a third party location.
3.11 Subject to acceptance by the Client of the Deliverables and any warranty provision in a Work Order, Speedwell will not be required to correct errors or defects in the Deliverables or in any other respect maintain or support the Deliverables. The Client agrees that any subsequent support services provided by Speedwell will incur additional charges.
3.12 The Services Speedwell will provide under this Agreement do not include those tasks referred to in a Work Order as Excluded Tasks.
3.13 If Speedwell undertakes Excluded Tasks at the request of the client, Speedwell may invoice the Client for the additional Services.
4. SERVICES RATES, FEES, COSTS, EXPENSES AND CREDIT
4.1 Speedwell standard rates are as notified to the Client from time to time.
4.2 Speedwell will notify the Client 45 days in advance of any scheduled rate rise. Existing fixed price quotations or fixed period quotations accepted before notification of a rate rise will not be affected by the scheduled rise.
4.3 A loading of 50% applies to Speedwell’s current standard rates where the Client has specifically requested Services to be performed during Extended Office Hours.
4.4 A loading of 100% applies to Speedwell’s current standard rates where the Client has specifically requested Services to be performed outside of both Standard Office Hours and Extended Office Hours.
4.5 The Client must pay the Fees to Speedwell in accordance with the Work Orders, or where a Work Order validly does not exist as covered in sub-clauses 5.2(c) and 5.2(d) in accordance with the services rates detailed in Clause 4.
4.6 The Client will pay all validly issued invoices from Speedwell within 14 days of receipt or as indicated on the Work Order. However, the Client may withhold payment of an item in an invoice if it has a bona fide query, until such time as the query has been resolved to the Client’s reasonable satisfaction.
4.7 The Client acknowledges valid invoices issued by Speedwell to the Client are payable within the 14 day payment terms regardless of the Client’s payment status or relationship with third parties.
4.8 The Client acknowledges that payment of Speedwell is not dependent on payment being made to the Client by other parties.
4.9 In the event that the Client fails to pay a validly issued invoice from Speedwell within 30 days of receipt or as indicated on the Work Order:
(a) The Client must pay late fees, calculated daily and compounded monthly, on any money that the Client owes Speedwell but does not pay on time. The late fee is payable on the amount outstanding from the day the money becomes due until it is paid. The late fees will be calculated at a rate of 2% per month or part thereof; and
(b) The Client will be liable for collection fees incurred by Speedwell in efforts to recover payment; and
(c) Speedwell may immediately suspend provision of Services to the Client without notice until receipt of payment.
4.10 Speedwell will bear all costs and expenses incurred by it in relation to this Agreement unless the Client has expressly consented to bear any specific cost or expense prior to it being incurred by Speedwell in which case reimbursement of the cost or expense may be invoiced by Speedwell on the first day of the month following the month in which it was incurred.
4.11 Unless stated otherwise in any Work Orders all references to currency are to Australian currency and are exclusive of GST.
4.12 The Client authorises Speedwell to obtain from and give to credit reporting agencies and other credit providers certain information about the Client so that Speedwell may manage the Client’s account. This information may include details such as name, address, date of birth, company details and address, credit history and creditworthiness, credit standing with us and credit capacity. Speedwell reserves the right to refuse your application for, monitor ongoing usage of, or restrict access to the Services on the basis of our assessment of credit information relating to the Client. The Client is entitled to see and correct any credit information Speedwell holds about the Client.
5. ACCEPTANCE OF REQUESTS FOR SERVICES
5.1 The Client agrees to nominate one or more staff members as Client’s Authorised Representatives responsible for providing to Speedwell as required:
(a) all necessary data and client documentation; and
(b) clear user requirements, specifications, timelines and tasks for completion; and
(c) approval of service requests, user acceptance testing and Documentation.
5.2 The Client agrees that work may immediately commence, and fees accrue on Services requested of Speedwell via
(a) return by email, fax or mail of a valid Speedwell prepared Work Order which has been signed by an Authorised Representative;
(b) email, fax or mail from an Authorised Representative clearly indicating acceptance of a valid Speedwell prepared Work Order indicating the specific Work Order by work order number and revision (if applicable);
(c) email, fax or mail by an Authorised Representative where support or maintenance services estimated to be no more than eight (8) hours have been requested
(d) email, fax or mail from an Authorised Representative clearly indicating acceptance of a valid Speedwell quotation for support or maintenance services of up to 40 hours indicating the specific quotation by quotation number and revision (if applicable);
5.3 The Client agrees that any Authorised Representative who requests work under this clause 5 will also take responsibility for ensuring that validly prepared invoices are approved in a timely manner such that payment is not delayed past the agreed terms.
5.4 The Client agrees that this Agreement forms the standard terms and conditions of engagement with Speedwell. The Client further agrees that until a signed Agreement exists, any Services requested by the Client and accepted by Speedwell will be performed under the conditions listed in this Agreement.
6. INTELLECTUAL PROPERTY
6.1 Intellectual Property Rights means copyright, trademark, design and patent rights.
6.2 Subject to sub-clauses 6.3, 6.4 and 6.5, Speedwell agrees to assign to the Client or the Client’s nominated third party identified within the specific project’s Work Order all Intellectual Property Rights in original work specific to the unique Business Rules of the Client, to which Speedwell as the developer is now entitled, upon full and final payment of all Fees.
6.3 The Client acknowledges that such vesting of title does not affect the Intellectual Property Rights in any pre-existing material incorporated into the Deliverables. In such circumstances, Speedwell agrees to grant to the Client or the Client’s nominated third party identified within the specific project’s Work Order, subject to any Fees and conditions specified in a Work Order or licence provisions of a relevant vendor, a non-exclusive and non-transferable licence to use pre-existing material within the Deliverables.
6.4 The Client grants Speedwell an exclusive, royalty-free, perpetual licence to use the original programming code or scripts or systems developed by Speedwell under this agreement, in any way Speedwell chooses, without limitation.
6.5 The Client agrees that the right to use stock photography used in the Deliverables and which was purchased by Speedwell resides in the vendor of that stock photography. The Client agrees not to use it in any other medium without the consent of that vendor.
6.6 The Client agrees to indemnify Speedwell against all actions, claims, losses and damages (direct or indirect) arising from or incidental to the electronic publication of material supplied by the Client and used in the Deliverables.
6.7 Subject to sub-clauses 6.8, 6.9 and 6.10, Speedwell agrees to indemnify the Client against liability under any final judgment in proceedings brought by a third party against the Client which determine that the Client’s use of the Deliverables constitutes an infringement of Australian Intellectual Property Rights.
6.8 However, Speedwell will not indemnify the Client as provided in sub-clause 6.7 unless the Client:
(a) notifies Speedwell in writing as soon as practicable of any infringement, suspected infringement or alleged infringement;
(b) permits Speedwell to modify, alter or substitute the infringing part of the Agreement Deliverables, at Speedwell’s own expense, to render the Agreement Deliverables non-infringing;
(c) gives Speedwell the option to conduct the defence of such a claim, including negotiations for settlement or compromise prior to the institution of legal proceedings;
(d) provides Speedwell with reasonable assistance in conducting the defence of such a claim; or
(e) authorise Speedwell to procure for the Client the authority to continue the use and possession of the Agreement Deliverables.
6.9 Speedwell will not indemnify the Client if such infringement, suspected infringement or alleged infringement arises from the Client’s:
(a) use of the Deliverables in combination by any means and in any form with other goods not specifically approved by Speedwell in writing;
(b) use of the Deliverables in manner or for a purpose not reasonably contemplated or not authorised by Speedwell in writing;
(c) modification or alteration of the Deliverables or any transaction entered into by the Client relating to the Deliverables without Speedwell’s prior written consent.
6.10 The Client agrees to indemnify Speedwell against any loss, costs, expenses, demands or liability, whether direct or indirect, arising out of a claim by a third party alleging such infringement if:
(a) the claim arises from an event specified in sub-clause 6.9
(b) Speedwell’s ability to defend the claim has been prejudiced by the failure of the Client to comply with the provisions of sub-clauses 6.8 or 6.9.
6.11 This clause 6 will survive the termination of this Agreement.
7.1 Confidential Information means:
(a) this agreement and associated work orders and quotations;
(b) Documentation; and
(c) information relating to the business and financial affairs of the parties;
but excludes information that:
(a) is already in the public domain;
(b) subsequently becomes part of the public domain other than as a result of an unauthorised disclosure by the receiving party or its representatives;
(c) is or becomes available to the receiving party from a third party who is legally entitled to possess and provide the information to the receiving party;
(d) the receiving party is legally entitled to know (as shown by appropriate records) prior to the date of disclosure by the disclosing party under this Agreement; and
(e) is independently developed by an employee of the receiving party (as shown by the appropriate records) who has no knowledge of the disclosure by the disclosing party under this Agreement.
7.2 Each party must keep the Confidential Information of the other party secret and confidential and must not:
(a) disclose such Confidential Information to any person, except to bona fide employees, officers, directors or consultants of such party whose access is necessary to enable such party to perform its obligations or exercise its rights under this Agreement; or
(b) use or allow such Confidential Information to be used for any purpose, except in the following circumstances:
(i) if such use or disclosure is in accordance with the terms of this Agreement or the prior written consent of the other party;
(ii) if required by law; or
(iii) if disclosure is required for the purpose of obtaining legal, tax, accounting or other similar professional advice in relation to this Agreement.
7.3 Each party:
(a) must ensure its employees, contractors and agents comply with the confidentiality obligations contained in this clause as if bound to them; and
(b) acknowledges that, subject to clause8, it is liable for any breach by its employees, contractors or agents of the obligations contained in this clause as if the breach were a breach by the party.
(c) agrees to take all reasonable steps and the same precautions to protect the Confidential Information of the other party in its possession from disclosure to third parties as with its own proprietary and confidential information.
7.4 This clause 7 will survive the termination of this Agreement.
8.1 Speedwell makes no warranties other than those expressly set out in this Agreement and excludes from this Agreement all other warranties, conditions and terms implied by statute, general law or custom.
8.2 Speedwell’s liability to the Client is limited at Speedwell’s option to any one of the following:
(a) in the case of goods, the repair or replacement of the goods, the supply of equivalent goods or the payment of the cost of repairing or replacing the goods; and
(b) in the case of the supply of services, re-supply of the services or payment of the cost of re-supplying the services.
8.3 Subject to clause 8.2, Speedwell is not liable to the Client in contract for consequential or indirect damages including, without limitation, for loss of data, profit, business, revenue, anticipated savings or good will or for claims by third parties and whether or not such damages were foreseeable or contemplated.
8.4 Notwithstanding anything contained in the preceding sub-clauses, this Agreement does not exclude or limit in any way the System of any statutory provision (including a provision of the Competition and Consumer Act 2010) where to do so would:
(a) contravene that statute; or
(b) cause any part of this clause to be void; and
the provisions of this Agreement are deemed excluded or modified (as the case may be) to the extent of any inconsistency with such statutory provision.
9. EMPLOYEES AND CONTRACTORS
9.1 Subject to the laws in force for the time being relating to the validity of restrictive covenants,
(a) Speedwell shall not solicit for employment, whether directly or indirectly, or otherwise employ, engage or contract from the date of this Agreement until the expiration of 6 months after the termination or expiry of this Agreement, any person who is employed or contracted by the Client during the term of this Agreement; and
(b) The Client shall not solicit for employment, whether directly or indirectly, or otherwise employ, engage or contract from the date of this Agreement until the expiration of 6 months after the termination or expiry of this Agreement, any person who is employed or contracted by Speedwell during the term of this Agreement.
9.2 If a person who is employed or contracted by the Client seeks to be employed or contracted by Speedwell prior to the expiration of 6 months after the termination of this Agreement, that Speedwell shall promptly advise the Client, who may refuse to consent to Speedwell employing that person at their sole discretion.
9.3 If a person who is employed or contracted by Speedwell seeks to be employed or contracted by the Client prior to the expiration of 6 months after the termination of this Agreement, that the Client shall promptly advise Speedwell, who may refuse to consent to the Client employing that person at their sole discretion.
10. SUSPENSION & TERMINATION
10.1 Speedwell may suspend provision of Services to the Client indefinitely and without notice if the Client breaches any provision of this Agreement.
10.2 Either party may terminate this Agreement by giving the other party 14 days’ notice in writing. Fees paid to Speedwell prior to any termination under this Agreement are non-refundable.
10.3 Either party may terminate this agreement with immediate effect by giving written notice to the other party if:
(a) the other party breaches any provision of this Agreement and, if such breach is remediable, fails to remedy such breach within 14 days of receiving written notice requiring it to do so;
(b) the other party ceases to carry on business;
(c) any step is taken to enter into any scheme of arrangement between the other party and its creditors;
(d) any step is taken by a mortgagee to enter into possession or dispose of the whole or any part of the other party's assets or business;
(e) any step is taken to appoint a receiver, a receiver and manager, an official manager, a liquidator, a provisional liquidator, an administrator or other like person of the whole or any part of the other party's assets, undertaking or business;
(f) the other party disposes of the whole or any part of its assets, operations or business other than in the normal course of business; or
(g) the other party becomes insolvent or is otherwise unable to pay its debts as and when they become due.
10.4 Termination of this Agreement does not affect any accrued rights or remedies a party may have.
10.5 On termination of this Agreement for any reason, Speedwell must, if requested by the Client, immediately:
(a) deliver to the Client all Confidential Information of the Client in its possession;
(b) deliver to the Client any documents or property of the Client in its possession.
10.6 On termination of this agreement for any reason, the Client must pay Speedwell for work done up until the date of termination.
11. ABOUT THIS AGREEMENT
11.1 This agreement:
(a) is governed by the laws of Queensland and the Commonwealth of Australia (as applicable);
(b) may not be varied or waived except in writing signed by the parties and such waiver or variation is without prejudice to the party’s rights in relation to any subsequent breach.
11.2 Each party must, at its own expense, do everything reasonably necessary to give full effect to this Agreement.
11.3 Speedwell may novate or assign its rights and obligations under this Agreement without consent of the other party.
11.4 The Client may novate or assign its rights and obligations under this Agreement only with the consent of Speedwell. Such consent may not be unreasonably withheld.
11.5 Any part of this Agreement that is prohibited by or rendered unlawful or unenforceable under any law actually applied by a court of competent jurisdiction is severed from this Agreement and, to the extent possible, without modification to the remaining provisions of this Agreement which will continue to operate.
11.6 A party is not in breach of this Agreement nor liable to the other party for a delay or failure to perform an obligation (other than an obligation to pay money) resulting from events or circumstances beyond the party’s reasonable control.