Terms and conditions
Please read these Terms and Conditions carefully. All contracts that Complete Data Recovery may enter into from time to time for the provision of IT consultancy services and Data Recovery services shall be governed by these Terms and Conditions, and Complete Data Recovery will ask the Client for the Client's express written acceptance of these Terms and Conditions before providing any services to the Client.
TERMS AND CONDITIONS
1. Definitions
1.1 Except to the extent expressly provided otherwise, in these Terms and Conditions:
"Charges" means the following amounts:
(a) the amounts specified in Section 6 of the Statement of Work ;
(b) such amounts as may be agreed in writing by the parties from time to time and
(c) amounts calculated by multiplying Complete Data Recovery's standard time-based charging rates as notified by Complete Data Recovery to the Client before the date of the Contract by the time spent by Complete Data Recovery's personnel performing the Services (rounded down by Complete Data Recovery to the nearest ½ hour;
"Client" means the person or entity identified as such in Section 1 of the Statement of Work;
"Client Materials" means all works and materials supplied by or on behalf of the Client to Complete Data Recovery for incorporation into the Deliverables or for some other use in connection with the Services;
"Complete Data Recovery" means Mecca Computer Consulting a business in Melbourne Australia with ABN 27 320 302 113 having its registered office at 18 Grenville Walk Lalor Vic 3075 established in 2003 under the laws of Australia having its principal place of business at 18 Grenville Walk Lalor, Vic 3075.
"Contract" means a particular contract made under these Terms and Conditions between Complete Data Recovery and the Client;
"Deliverables" means those specified in Section 3 of the Statement of Work that Complete Data Recovery has agreed to deliver to the Client under these Terms and Conditions;
"Effective Date" means the date of execution of a Statement of Work incorporating these Terms and Conditions;
"Intellectual Property Rights" means all intellectual property rights wherever in the world, whether registrable or registrable, registered or unregistered, including any application or right of application for such rights (and these "intellectual property rights" include copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trademarks, service marks, passing off
rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs);
"Services" means the consultancy services specified in Section 2 of the Statement of Work;
"Statement of Work" means a written statement of work agreed by or on behalf of each of the parties;
"Term" means the term of the Contract, commencing in accordance with Clause 3.1 and ending in accordance with Clause 3.2;
"Terms and Conditions" means all the documentation containing the provisions of the Contract, namely the main body of these Terms and Conditions and the Statement of Work, including any amendments to that documentation from time to time; and
"Third Party Materials" means the works and/or materials comprised in the Deliverables (excluding the Client Materials), the Intellectual Property Rights in which are owned by a third party, and which are specified in Section 3 of the Statement of Work or which the parties agree in writing shall be incorporated into the Deliverables.
2. Credit
2.1 This template was produced by SEQ Legal credit, see http://www.seqlegal.com/
You must retain the above credit, unless you purchase a licence to use this document without the credit. You can purchase a licence at: http://www.website-contracts.co.uk/seqlegal-licences.html. Warning: use of this document without the credit, or without purchasing a licence, is an infringement of copyright.
3. Terms
3.1 The Contract shall come into force upon the Effective Date.
3.2 The Contract shall continue in force indefinitely OR until:
(a) All the Services have been completed;
(b) all the Deliverables have been delivered; and
(c) all the Charges have been paid in cleared funds,
upon which it will terminate automatically, subject to termination in accordance with Clause 11.
3.3 Unless the parties expressly agree otherwise in writing, each Statement of Work shall create a distinct contract under these Terms and Conditions.
4. Services
4.1 Complete Data Recovery shall provide the Services to the Client in accordance with these Terms and Conditions.
4.2 Complete Data Recovery shall provide the Services with reasonable skill and care reasonably expected from a leading service provider in Complete Data Recovery's industry.
5. Deliverables
5.1 Complete Data Recovery shall deliver the Deliverables to the Client.
5.2 The Client must promptly, following receipt of a written request from Complete Data Recovery to do so, provide written feedback to Complete Data Recovery concerning Complete Data Recovery's proposals, plans, designs and/or preparatory materials relating to the Deliverables and made available to the Client with that written request.
5.3 Complete Data Recovery shall ensure OR use its best endeavors to ensure OR use reasonable endeavors to ensure that the Deliverables are delivered to the Client in accordance with the timetable set out in Section 4 of the Statement of Work.
5.4 Complete Data Recovery warrants to the Client that:
(a) The Deliverables will conform to the requirements of Section 3 of the Statement of Work as at the date of delivery of the Deliverables;
(b) The Deliverables will be free from material defects and
(c) The Deliverables OR the use of the Deliverables by the Client in accordance with these Terms and Conditions will not:
(i) breach the provisions of any law, statute or regulation ;
(ii) Infringe any third party's Intellectual Property Rights; or
(iii) Give rise to any cause of action against the Client,
In each case in any jurisdiction and under any applicable law.
6. License
6.1 Complete Data Recovery hereby grants to the Client a non-exclusive, worldwide, perpetual and irrevocable license to copy, store, distribute, publish, adapt, edit and otherwise use the Deliverables (excluding the Third Party Materials and the Client Materials for the following purposes: Recovered data of client.
7. Charges
7.1 The Client shall pay the Charges to Complete Data Recovery in accordance with these Terms and Conditions.
7.2 All amounts stated in or in relation to these Terms and Conditions are, unless the context requires otherwise, stated inclusive of any applicable value added taxes OR exclusive of any applicable value added taxes, which will be added to those amounts and payable by the Client to Complete Data Recovery.
8. Payments
8.1 Complete Data Recovery shall issue invoices for the Charges to the Client from time to time during the Term OR on or after the invoicing dates set out in Section 6 of the Statement of Work OR at any time after the relevant Services have been delivered to the Client OR in advance of the delivery of the relevant Services to the Client.
8.2 The Client must pay the Charges to Complete Data Recovery within the period of 30 days following the issue of an invoice in accordance with this Clause 8 OR the receipt of an invoice issued in accordance with this Clause 8.
8.3 The Client must pay the Charges by debit card, credit card, direct debit, bank transfer or cheque using such payment details as are notified by Complete Data Recovery to the Client from time to time.
8.4 If the Client does not pay any amount properly due to Complete Data Recovery under these Terms and Conditions, Complete Data Recovery may:
(a) charge the Client interest on the overdue amount at the rate of 8% per annum above the Bank of England base rate from time to time (which interest will accrue daily until the date of actual payment and be compounded at the end of each calendar month); or
(b) claim interest and statutory compensation from the Client pursuant to the Late Payment of Commercial Debts (Interest),
9. Warranties
9.1 Complete Data Recovery warrants to the Client that:
(a) Complete Data Recovery has the legal right and authority to enter into the Contract and to perform its obligations under these Terms and Conditions;
(b) Complete Data Recovery will comply with all applicable legal and regulatory requirements applying to the exercise of Complete Data Recovery's rights and the fulfilment of Complete Data Recovery's obligations under these Terms and Conditions ; and
(c) Complete Data Recovery has or has access to all necessary know-how, expertise and experience to perform its obligations under these Terms and Conditions.
9.2 The Client warrants to Complete Data Recovery that it has the legal right and authority to enter into the Contract and to perform its obligations under these Terms and Conditions.
9.3 All of the parties' warranties and representations in respect of the subject matter of the Contract are expressly set out in these Terms and Conditions and the applicable Statement of Work. Subject to Clause 10.1, no other warranties or representations will be implied into the Contract and no other warranties or representations relating to the subject matter of the Contract will be implied into any other contract.
10. Limitations and exclusions of liability
10.1 Nothing in these Terms and Conditions will:
(a) limit or exclude any liability for death or personal injury resulting from negligence;
(b) limit or exclude any liability for fraud or fraudulent misrepresentation;
(c) limit any liabilities in any way that is not permitted under applicable law; or
(d) exclude any liabilities that may not be excluded under applicable law.
10.2 The limitations and exclusions of liability set out in this Clause 10 and elsewhere in these Terms and Conditions:
(a) are subject to Clause 10.1; and
(b) govern all liabilities arising under these Terms and Conditions or relating to the subject matter of these Terms and Conditions, including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty, except to the extent expressly provided otherwise in these Terms and Conditions.
10.3 Neither party shall be liable to the other party OR Complete Data Recovery shall not be liable to the Client OR the Client shall not be liable to Complete Data Recovery in respect of any loss of profits or anticipated savings.
10.4 Neither party shall be liable to the other party OR Complete Data Recovery shall not be liable to the Client OR The Client shall not be liable to Complete Data Recovery in respect of any loss of revenue or income.
10.5 Neither party shall be liable to the other party OR Complete Data Recovery shall not be liable to the Client OR The Client shall not be liable to Complete Data Recovery in respect of any loss of use or production.
10.6 Neither party shall be liable to the other party OR Complete Data Recovery shall not be liable to the Client OR The Client shall not be liable to Complete Data Recovery in respect of any loss of business, contracts or opportunities.
10.7 Neither party shall be liable to the other party OR Complete Data Recovery shall not be liable to the Client OR The Client shall not be liable to Complete Data Recovery in respect of any loss or corruption of any data, database or software.
10.8 Neither party shall be liable to the other party OR Complete Data Recovery shall not be liable to the Client OR The Client shall not be liable to Complete Data Recovery in respect of any special, indirect or consequential loss or damage.
11. Termination
11.1 Either party may terminate the Contract by giving to the other party at least 30 days’ written notice of termination.
11.2 Either party may terminate the Contract immediately by giving written notice of termination to the other party if the other party commits a material breach of these Terms and Conditions.
11.3 Either party may terminate the Contract immediately by giving written notice of termination to the other party if:
(a) the other party:
(i) is dissolved;
(ii) ceases to conduct all (or substantially all) of its business;
(iii) is or becomes unable to pay its debts as they fall due;
(iv) is or becomes insolvent or is declared insolvent; or
(v) convenes a meeting or makes or proposes to make any arrangement or composition with its creditors;
(b) an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the other party;
(c) an order is made for the winding up of the other party, or the other party passes a resolution for its winding up (other than for the purpose of a solvent company reorganization where the resulting entity will assume all the obligations of the other party under the Contract) ; or
(d) if that other party is an individual:
(i) that other party dies;
(ii) as a result of illness or incapacity, that other party becomes incapable of managing his or her own affairs; or
(iii) that other party is the subject of a bankruptcy petition or order.
12. Effects of termination
12.1 Upon the termination of the Contract, all of the provisions of these Terms and Conditions shall cease to have effect, save that the following provisions of these Terms and Conditions shall survive and continue to have effect (in accordance with their express terms or otherwise indefinitely): Clauses 1, 6, 8.2, 8.4, 10, 12, 13.2 and 15 .
12.2 The termination of the Contract shall not affect the accrued rights of either party.
13. Status of Complete Data Recovery
13.1 Complete Data Recovery is not an employee of the Client, but an independent contractor.
13.2 The termination of the Contract will not constitute unfair dismissal; nor will Complete Data Recovery be entitled to any compensation payments, redundancy payments or similar payments upon the termination of the Contract.
14. Subcontracting
14.1 Complete Data Recovery must not subcontract any of its obligations under the Contract without the prior written consent of the Client, providing that the Client must not unreasonably withhold or delay the giving of such consent.
OR
14.1 Complete Data Recovery may subcontract any of its obligations under the Contract, providing that Complete Data Recovery must give to the Client, promptly following the appointment of a subcontractor, a written notice specifying the subcontracted obligations and identifying the subcontractor in question.
14.2 Complete Data Recovery shall remain responsible to the Client for the performance of any subcontracted obligations.
15. General
15.1 No breach of any provision of the Contract shall be waived except with the express written consent of the party not in breach.
15.2 If any provision of the Contract is determined by any court or other competent authority to be unlawful and/or unenforceable, the other provisions of the Contract will continue in effect. If any unlawful and/or unenforceable provision would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the provision will continue in effect (unless that would contradict the clear intention of the parties, in which case the entirety of the relevant provision will be deemed to be deleted).
15.3 The Contract may not be varied except by a written document signed by or on behalf of each of the parties.
15.4 Neither party may without the prior written consent of the other party assign, transfer, charge, license or otherwise deal in or dispose of any contractual rights or obligations under these Terms and Conditions.
15.5 The Contract is made for the benefit of the parties, and is not intended to benefit any third party or be enforceable by any third party. The rights of the parties to terminate, rescind, or agree any amendment, waiver, variation or settlement under or relating to the Contract are not subject to the consent of any third party.
15.6 Subject to Clause 10.1, a Statement of Work, together with these Terms and Conditions, shall constitute the entire agreement between the parties in relation to the subject matter of that Statement of Work, and shall supersede all previous agreements, arrangements and understandings between the parties in respect of that subject matter.
15.7 These Terms and Conditions shall be governed by and construed in accordance with Australian law.
15.8 The courts of Australia shall have exclusive jurisdiction to adjudicate any dispute arising under or in connection with the Contract.