1.1 Definitions and interpretation
The following definitions apply unless the context requires otherwise:
Business Day means a day that is not a Saturday, Sunday or public holiday in Brisbane.
Client means the entity identified as the client in the Engagement.
Client Material means all documents, information and materials provided by the Customer and used directly and indirectly in the supply of the Services.
Deliverable means a deliverable Speedwell is required to deliver to You as part of the Services as specified in the Engagement.
Fees means the fees set out in the Engagement and any additional fees or charges for which you are liable under these conditions.
Force Majeure Event means any event which is beyond a party's control and that is preventing its performance under these conditions (including war, riot, natural disaster, labour dispute, or law taking effect after the commencement of the Services).
Government Agency means:
- a government, whether foreign, federal, state, territorial or local;
- a department, office or minister of a government acting in that capacity; or
- a commission, delegate, instrumentality, agency, board or other governmental, semi-governmental, judicial, administrative, monetary or fiscal authority whether statutory or not.
Insolvency Event means in relation to a party, the occurrence of any one or more of these events in relation to that party:
- the party ceases or threatens to cease to carry on its business;
- the party ceases to (or is unable to) pay its creditors (or any class of them) in the ordinary course of business, or announces its intention to do so;
- a receiver, receiver and manager, administrator, liquidator or similar officer is appointed to that party or any of its assets;
- such party enters into, or resolves to enter into, a scheme or arrangement, compromise or composition with any class of creditors;
- a resolution is passed or an application to a court is taken for the winding up, dissolution, official management or administration of that party;
- the party or the party's property or undertakings become subject to a personal insolvency arrangement or a debt agreement under the Bankruptcy Act 1966 (Cth); or
- anything having a substantially similar effect to any of the events specified above happens under the law of any applicable jurisdiction.
Law means any applicable statute, regulation, by law, ordinance or subordinate legislation in force from time to time anywhere in Australia, whether made by a State, Territory, the Commonwealth, or a local government, and includes the common law as applicable from time to time.
Personal Information has the meaning given to that term in the Privacy Act.
Personnel means the officers, employees, agents and contractors of a party.
Engagement means the written proposal and engagement terms from Speedwell and accepted by You.
Services means the scope of services outlined to be provided by Speedwell in accordance with the Engagement.
Term means the period that Speedwell is to supply the Services as specified in the Engagement.
In these conditions, unless the context requires otherwise:
- references to legislation or regulations include any modification or re-enactment of them, and any instrument, regulations or orders issued under them;
- the singular includes the plural and the plural includes the singular. Words importing a gender include every other gender;
- if a word or phrase is defined, its other grammatical forms have a corresponding meaning;
- reference to a "person" or a word denoting an individual, person, firm, partnership, association (whether or not incorporated), corporation, authority, government, Government Agency or any other body or entity (in each case whether or not having separate legal personality), includes any of them;
- specifying anything in these conditions after the words "including", "includes", "such as", "for example" or similar expressions does not limit what else might be included unless there is express wording to the contrary;
- if the day on which:
- anything, other than a payment, is to be done is not a Business Day, that thing shall be done on the preceding Business Day;
- a payment is to be made is not a Business Day it shall be made on the next Business Day but if the next Business Day falls in the next calendar month it shall be made on the preceding Business Day; and
- if an act, other than a payment or the giving of a communication, is required to be done on a particular day and the act is done after 5:00pm on that day, it will be deemed to have been done on the following day.
2.1 These conditions will:
- apply to all Services and each Engagement; and
- prevail over any terms or conditions contained, or referred to, in Your purchase order, confirmation of order, acceptance of a quotation, or specification or other document supplied by You, or to the maximum extent permitted by law those implied by law, trade custom, practice or course of dealing.
2.2 Speedwell will use all reasonable endeavours to: provide the Services in accordance in all material respects with the Engagement; and meet any performance dates specified in the Engagement, but any such dates are estimates only and time will not be of the essence for the performance of the Services.
2.3 Unless expressly specified in the Engagement, the Services do not include any maintenance, updates or other ongoing services connected with the Engagement.
- cooperate with Speedwell in all matters relating to the Services;
- provide Speedwell, in a timely manner and at no charge, such Client Material and such other information as Speedwell may require providing the Services;
- providing Speedwell Personnel with any such codes, passes or passwords to access and use the Client Material as required for the Services; and
- allocate appropriate resources and people with the requisite skills and knowledge as reasonably required to assist Speedwell with the Services.
4. Security and compatibility
4.1 You are responsible for:
- the security of your own computer networks;
- employing all necessary safeguards, security procedures and controls necessary to protect against unauthorised access to your computer networks; and
- any consequences resulting from a failure to comply with this clause 4.1, including any vulnerabilities arising from viruses, words or other harmful codes.
4.2 Third party software, websites and social media technologies may be used in the Services and Deliverables or to view or use the Deliverables. Such software may be updated from time to time by its owners which may impact on the Services or Deliverable. Speedwell is not responsible for these updates or the impact on the Services or Deliverables.
4.3 You acknowledge that some third-party software, plug-ins and browsers incorporated or used in the Services may change during the course of the Services. Speedwell will make all reasonable efforts to accommodate these developments after the commencement of the Services, however this may impact the Services and result in additional time and Fees.
5.1 You must pay Speedwell the Fees in accordance with the Engagement.
5.2 Initial deposits and any amounts for out of pocket expenses are non-refundable. We may request that some or all of our anticipated Fees be paid in advance.
5.3 Speedwell may suspend the Services or withhold delivery of Deliverables if You have not paid any amounts owing to Speedwell.
5.4 You must pay all of Speedwell's invoices in Australian dollars within fourteen days of the date of the invoice by electronic transfer into an account nominated by Speedwell quoting the invoice number. All bank fees and other charges are your sole responsibility.
5.5 If You cause a delay due to:
- Your failure to provide any Client Material;
- a breach of these conditions by You;
- Your delay in providing approvals; or
- request to hold the Services, which results in Speedwell being delayed from completing any milestone or task which would entitle Speedwell to invoice You, Speedwell may at its discretion:
- invoice You for work completed to date;
- charge downtime, lost production days or rescheduling fees;
- other costs caused by the delays;
- place the Services on hold and update the Engagement; and/or
- charge additional Fees to recommence the Services.
5.6 You will reimburse Speedwell for any out of pocket expenses, including travel expenses incurred in connection with the Services.
5.7 Any failure to pay an invoice in full may result in one or more of the following occurring:
- Speedwell ceasing to provide the Services; late payment interest applying to the overdue amount, calculated at a rate equal to 2% per annum above the then current cash rate target of the Reserve Bank of Australia, calculated daily from the date the payment became due to the date of full and final payment; or invoices outstanding for more than 30 days may be referred to a debt collection agency or other steps to recover the debt.
5.8 Goods and services tax
- Unless otherwise expressly stated, all amounts stated to be payable in these Conditions are exclusive of GST.
- If GST is imposed on any Supply made under or in accordance with these conditions, the Recipient of the Taxable Supply must pay to Speedwell an additional amount equal to the GST payable on or for the Taxable Supply. Payment of the additional amount will be made at the same time as payment for the Taxable Supply is required to be made in accordance with these conditions, subject to the provision of a Tax Invoice.
- If these conditions require a party to pay for, reimburse or contribute to any expense, loss, indemnity or outgoing (Reimbursable Expense) suffered or incurred by another party, the amount required to be paid, reimbursed or contributed by the first party will be the sum of:
- the amount of the Reimbursable Expense less the Input Tax Credits (if any) to which the other party is entitled in respect of the Reimbursable Expense; and
- if the other party's recovery from the first party is a Taxable Supply, any GST payable in respect of that Supply.
- In this clause 5.8, the expressions GST, Input Tax Credit, Supply, Tax Invoice, Recipient and Taxable Supply have the meanings given to those expressions in A New Tax System (Goods and Services Tax) Act 1999 (Cth).
6. Intellectual Property Rights
6.1 You retain ownership of all Intellectual Property Rights in the Client Material.
6.2 You grant Speedwell a non-exclusive licence to use, reproduce, modify and adapt the Client Material for the purpose of providing the Services.
6.3 Speedwell retains ownership of all Intellectual Property Rights it creates in connection with the provision of the Services and in all Deliverables (other than the Client Materials or third-party materials).
6.4 Speedwell grants You a non-exclusive licence to use the Intellectual Property Rights it owns in the Deliverables (other than any source code incorporated into a Deliverable) to the extent necessary for You to use the Deliverables for:
- the purpose for which they are ordinarily acquired; and
- for such other purpose specified in the Engagement.
7. Privacy and disclosure of Personal Information
8. Use of name
You permit Speedwell to:
- use Your name and logos; and
- disclose a brief description of the Services provided to You, for advertising and marketing of Speedwell’s services
9.1 You warrant that:
- You have the power and authority to enter into and perform its obligations under these Conditions and that the acceptance of these Conditions by You have been duly and validly authorised by all necessary corporate action;
- You have all necessary rights to grant the licence to the Client Material in clause 6.2;
- its obligations under these conditions are valid and binding and enforceable against it in accordance with their terms;
- as far as it is aware, no additional authorisations, consents or approvals are necessary or required to enter into and give effect to these conditions; and
- in its corporate capacity, no litigation, arbitration, mediation, conciliation or administrative proceedings are taking place or to the knowledge of its Personnel are pending or threatened against it or any of its property which, if adversely determined, is likely to have a material adverse effect on its obligations to perform under these conditions.
9.2 Speedwell does not warrant that the Services and Deliverables will be provided uninterrupted and error-free and Speedwell does not warrant that the Services and Deliverables will meet Your individual requirements.
10. Liability and indemnity
10.1 Subject to clause 10.2, Speedwell excludes all liability, conditions and warranties which would otherwise be implied in these conditions.
10.2 If any Law implies in these conditions any condition or warranty and avoids or prohibits provisions in an agreement which exclude, restrict or modify the application or liability under that condition or warranty, the condition or warranty will be deemed to be included in these conditions to the minimum extent required (Non-excludable Condition).
10.3 To the maximum extent permitted by Law, the liability of Speedwell for any loss or damage however caused (including by the negligence of Speedwell) or breach of a Non-excludable Condition is limited at the option of Speedwell to:
- supply the Services again;
- paying the costs to have the Services supplied again; or
- payment of $1,000.
10.4 You are liable for, and indemnify Speedwell from and against, all loss or damage (including legal costs on a solicitor and client basis) incurred or suffered by Speedwell however caused in connection with:
- any breach of these Conditions by You; or
- any act, error, omission or negligence by You and Your Personnel or any person purporting to act on Your behalf.
10.5 Each indemnity above:
- is a continuing obligation; and
- constitutes a separate and independent obligation from Your other obligations under these Conditions.
10.6 It is not necessary for Speedwell to incur any expense or make any payment before enforcing or making a claim under an indemnity.
11.1 Speedwell may terminate the Services:
- immediately on giving written notice to You, if You suffer an Insolvency Event and such event has continued for at least five Business Days;
- immediately on giving written notice to You, if You are in breach of any provision of these conditions, provided that where the breach is capable of remedy, You failed to remedy the breach within 10 days of receipt of written notice describing the breach and calling for it to be remedied;
- immediately if you require Speedwell to include or use Client Material or other content which Speedwell deems inappropriate, offensive, defamatory, illegal, pornographic or sexually explicit in a Deliverable or in connection with the Services; or
- by giving You 30 days written notice.
11.2 You may terminate the Services with 30 days written notice to Speedwell.
11.3 Upon termination or expiration of these conditions Speedwell will cease providing the Services.
11.4 Surviving clauses
Termination of these conditions for any reason does not affect any rights of the parties accrued prior to termination. The provisions of clauses 5, 7, 8, 9, 10, 11.3, 15.2 and this clause 11.4 survive termination or expiration of the Services.
12. Force Majeure Event
- A party shall not be liable for any delay or failure to perform its obligations under these conditions (other than an obligation to pay Fees or other amounts) if such delay is due to a Force Majeure Event.
- If a delay or failure is caused or anticipated due to a Force Majeure Event, that party's obligations will be suspended. If a delay or failure by a party to perform its obligations due to Force Majeure Event exceeds 60 days, the other party may immediately terminate these conditions on providing notice in writing to the party.
13. Dispute resolution
13.1 You must not start court proceedings (except proceedings seeking interlocutory relief) in respect of a dispute arising out of these conditions (Dispute) unless You have complied with this clause.
13.2 If You claim that a Dispute has arisen You must notify Speedwell to the Dispute giving details of the Dispute.
13.3 During the 10 Business Day period after a notice is given under clause 13.2 (or longer period agreed in writing by the parties to the Dispute) (Initial Period) each party must use its reasonable efforts to resolve the Dispute, including referring the Dispute to senior management and then to the relevant Chief Executive Officers.
13.4 If the Dispute cannot be resolved within the Initial Period, the parties must refer the Dispute for mediation.
13.5 The mediator will be a registered member of the Resolution Institute mutually agreed by the parties or, in default of agreement within a further period of seven days, appointed, at the request of either party, by the President for the time being of the Resolution Institute.
13.6 The mediation will be conducted in Brisbane, in accordance with the guidelines laid down by the appointed mediator, having regard to the principles of best practice in mediation generally. The parties will bear their own costs of preparing for and participating in the mediation.
13.7 If the mediation does not conclude the Dispute within 10 Business Days of mediation and unless the parties agree to extend the mediation, either party may start court proceedings.
14.1 All notices, requests, demands, consents, approvals, offers, agreements or other communications (Notices) given by a party under or in connection with these conditions must be:
- in writing;
- signed by a person duly authorised by the sending party;
- directed to the recipient's address specified in the Engagement;
- hand delivered, sent by prepaid post or transmitted by email to that address.
14.2 A Notice given in accordance with this clause 14 is taken as having been given and received:
- if hand delivered at or before 4.30 pm on a Business Day, on delivery, otherwise at 9.30 am on the next Business Day;
- if sent by prepaid post:
- within Australia, on the second Business Day after posting;
- to or from a place outside Australia, on the seventh Business Day after the date of posting;
- if sent by email transmission, at the time that would be the time of receipt under the Electronic Transmissions Act 1999 (Cth).
15.1 These conditions set out the entire agreement between the parties and supersedes any prior agreements or discussions or conduct by the parties.
15.2 Governing law and jurisdiction
- These conditions is governed by Queensland law.
- The parties submit to the non-exclusive jurisdiction of the courts of that State.
15.3 Speedwell may amend these conditions from time to time. Updated conditions will be made available on Speedwell's website https://speedwell.com.au/terms-and-conditions. The conditions in place at the time the Engagement is accepted will be the conditions which apply to the Services.