NGIS Standard Terms and Conditions July 2024

NGIS Standard Terms and Conditions

In consideration of NGIS Australia Pty Ltd (“NGIS”) providing the Services to the Client in accordance with the terms and conditions of the Agreement, the Client acknowledges and agrees that the terms and conditions contained in this document (“Terms”) form part of this Agreement between NGIS , and the Client and that the Terms take precedence over any other terms and conditions which may be contained in any other document which does not form part of this Agreement (unless agreed in writing by NGIS).

Sole Agreement:
1. The Agreement constitutes the entire agreement between the Client and NGIS with respect to the Services and, to the extent permitted by law, there are no agreements, representations, warranties or conditions, express or implied, statutory or otherwise, other than as stated in the Agreement and which in any way extends, modifies or qualifies any of the provisions of this Agreement.
2. To the extent permitted by law, the Agreement supersedes and cancels any and all other written and or verbal conditions, agreements, communications, and representations between the Parties in regard to the Services, unless expressly agreed in writing by NGIS.
3. Where any provision of these Terms or any term contained in the Agreement is not enforceable or is prohibitive, that provision is to be read down accordingly and shall not affect any other provision of the Agreement.
4. The Client acknowledges that to the extent that NGIS has made any representation, written or otherwise:
  1. that representation does not form part of the Agreement unless expressly stated otherwise; and
  2. the Client has, in any event, been provided sufficient opportunity to independently verify the accuracy of that representation.
The Client must, as soon as practicable (or otherwise when necessary or relevant):
1. Provide or make available to NGIS all information, documents and particulars relating to the Client’s requirements as to the Services and otherwise which might reasonably be regarded as being relevant for the purpose of providing the Services;
2. Make any and all arrangements to enable NGIS to safely enter upon any land or premises necessary to enable NGIS to provide the Services;
3. Obtain all approvals, authorities, licenses and permits which are or may be required for the lawful implementation and provision of the Services;
4. If the Client becomes aware of any matter which may affect the scope and/or timing of the Services, give written notice of the matter to NGIS (and any loss associated with any delay in that notice will be borne by the Client).
NGIS will:
1. Provide the Services using all reasonable care, skill and diligence to be reasonably expected from a qualified, competent and experienced supplier of services similar to the Services;
2. at all times act in the Client’s best interests acting ethically and in accordance with the Applicable Laws and its obligations set out in the Agreement;
3. Not provide any tax, stamp duty or financial advice or any other advice outside of the scope of the Services and Client will be responsible for obtaining its own specialist advice in these and other areas;
4. Be entitled to treat all information received from Client as accurate and reliable, and NGIS will not be obliged to verify any information provided to NGIS by the Client;
5. Provide the Services for the Client alone and will not regard any other person or organisation (including but not limited to any of the Client’s investors, shareholders, directors, officers, employees, agents, advisers or subsidiaries) as its client in relation to the Services provided under the Agreement.
The Client shall, if appropriate, appoint a person or persons to act as its representative(s) and give written notice to NGIS of the person(s) appointed, which person shall be deemed by NGIS to have authority to act and to make any decisions on behalf of the Client for all purposes in connection with this agreement.
The Client representative shall have the right to appoint a delegate if and where necessary or appropriate.
The Client may at any time replace the Client’s representative or appoint an additional representative by written notice to NGIS.
Except where otherwise agreed in writing by NGIS, the Fees for the Services provided by NGIS shall:
1. If applicable, be calculated by reference to the applicable hourly charge rate for the person(s) undertaking the relevant Services as specified in the Project Proposal, whereby a working day is considered to be 7.6 hours; and/or
2. in respect of Product, if applicable, the amount(s) stated in the Project Proposal; and/or
3. The Fees stated in the Project Proposal.
Unless otherwise agreed in writing by NGIS, all rates, pricing and or quotes provided in a Project Proposal or other means are valid for 30 days from the date of issue of that Project Proposal.
Notwithstanding clause 5, NGIS reserves the right to at any time re-quote, cancel and or amend any Fees or pricing within a Project Proposal due to changes or fluctuations in Product, foreign exchange rates, reseller discount certification, pricing offers from NGIS’s vendors, and/or if any errors or omissions are found in the Project Proposal and which relate to or have the effect of altering the pricing or Fees set out in same.
Any estimate, quote or statement of range of the cost of Services specified by NGIS will not limit the charges that may be charged by NGIS unless NGIS has in writing agreed to fix or limit charges by reference to an estimate, quote or range of cost, signed by a director or department manager of NGIS.
In addition to any and all Fees for the Services the Client must pay any and all Disbursements, being:
1. All disbursements incurred by NGIS (plus an administration charge of 10% of the aggregate of all disbursements), including without limiting the generality of the foregoing, all costs reasonably incurred in respect of travel, telephone, facsimile, courier, postage, accommodation, copying, application fees and sub contractor fees, without supporting documents being furnished; and
2. Motor vehicle travelling expenses at the rate per business kilometre for travel of less than 5,000 km per annum applicable from time to time pursuant to the Income Tax Assessment Act 1936 as amended; and
3. In relation to Fees which have not been paid in full by the relevant due date, NGIS’s costs to obtain payment for such unpaid Fees, inter alia, debt collection and legal fees.
NGIS reserves the right to adjust the rates at 1 January and 1 July in each year by an amount not less than the changes in the Consumer Price Index (All Groups) Perth in the preceding six months, will act reasonably in doing so, and nothing in the Agreement shall be taken as precluding NGIS from taking such action.
Tax invoices
1. NGIS will issue a valid tax invoice at the end of each calendar month or otherwise as and when it deems necessary or appropriate in it sole discretion, for all amounts payable in respect of Services provided to the Client under the Agreement. All invoices must set out particulars of the amounts payable and the total amount payable by the Client.
2. Unless otherwise agreed by the Parties in writing, the Client must pay the full amount stated in an invoice within 30 days of the date of an invoice, without set off, counterclaim or deduction.
3. The Client must inform NGIS within 30 days of receiving an invoice of any error or inconsistency in respect of that invoice, or if it disputes the amount payable as stated in the invoice. If the Client fails to notify NGIS within the stipulated timeframe, the invoice will be deemed correct and conclusive and the Client is taken to have waived its right to dispute or challenge the invoice entirely.
4. Where the Client disputes an invoice for any reason, the Parties shall negotiate in good faith and endeavour to promptly resolve the dispute in accordance with the procedures set out in these Terms.
5. If the Client defaults on any payment due and payable to NGIS under the Agreement, then all money which would become payable by the Client to NGIS at a later date on any account becomes immediately due and payable without the requirement of any notice to the Client, and NGIS may, without prejudice to any other remedy available to it:
  1. charge Default Interest on any and all amounts due any payable, calculated at the daily rate from the date that payment was due until the date it is paid;
  2. charge the Client for, and the Client must indemnify NGIS from, all costs, fees and expenses (including without limitation all legal costs and expenses on an indemnity basis) incurred by it any which relate or result from the default or in enforcing NGIS’s rights under the Agreement; and
  3. terminate the Agreement in accordance with clause 19 and any such action shall not affect the accrued rights of NGIS under the Agreement.
6. Any amounts owing to NGIS that are not paid in full and on time will attract interest at the latest annual general interest charge rate as levied by the Australian Tax Office plus a margin of 5%.
Confidentiality:
1. All Confidential Information shall be treated as confidential and shall not be used for any purpose other than the performance of the Services or the Agreement, or disclosed in whole or part by either Party to any third party, unless the other Party has agreed to the disclosure in advance and in writing.
2. Subject to this clause 14, the Parties must:
  1. take appropriate measures to secure the Confidential Information so as to prevent unauthorised access or disclosure; and
  2. upon termination of expiry of the Agreement and where one Party (Requesting Party) requires the other Party (Recipient Party)to do so, return or otherwise permanenty delete or destroy all Confidential Information of the Requesting Party that is in the possession or control of the Recipient Party.
3. Notwithstanding clause 14.1, each party may disclose Confidential Information if and to the extent:
  1. required by any applicable law, stock exchange rule and/or regulation, regulatory or governmental body or for the purposes of any judicial, arbitral or administrative proceedings; or
  2. required by persons professionally engaged by or on behalf of such Party;
  3. required to a director, officer, employee or agent of the Party whose function requires him or her to have the Confidential Information and/or who reasonably needs to know the Confidential Information for the purposes of the Agreement;
  4. the information has come into the public domain otherwise than through the fault of the disclosing party
4. provided that, in respect of subclauses 14.2.1 – 14.3.3, the disclosing Party shall keep the disclosure of the Confidential Information to the minimum necessary for the purpose for which it is disclosed, provided that such Party shall require the recipient to keep the Confidential Information confidential on the same terms as are provided in this clause, and where practical, consults and/or informs the other party of the intended disclosure in advance.
Client agrees that:
1. Except for third party items in which NGIS holds limited or no rights thereto, NGIS owns all title, ownership and proprietary and intellectual property rights, including copyright, trade marks and rights to seek registered designs, patents and other registered property rights, in relation to all Documents prepared or provided by NGIS in connection with providing the Services or to the Client and the Client shall not publish nor make copies or reproductions of any Document unless prior approval in writing is given by NGIS; and
2. NGIS may use technical information gathered or produced by it in connection with providing the Services, including information concerning configuration, installation or deployment of software, for NGIS’s technical development, product development, marketing and support purposes; and
3. Notwithstanding anything to the contrary, if the Services contain any Product, that such Product may be subject to its own terms and conditions or the like and the Client warrants and indemnifies NGIS against any breach of these terms and conditions and or RTC’s by Client Extended as defined in clause 26.
Subject to clause 11, the Client shall:
1. provided all payments due to NGIS from Client have been made, have a limited, perpetual, non-transferable, non-sublicensable, royalty free licence to use Documents referred to in clause 15 for the purposes for which the Services were provided; and
2. not use Documents referred to in clause 15 for capital raising purposes without NGIS’s written permission.
Non-Solicitation:
1. The Client acknowledges and agrees that NGIS has made significant investment (financial and otherwise) in recruiting, retaining and training the NGIS Personnel. To protect this investment, the Client agrees that it will not, either directly or indirectly in any manner whatsoever (including via a related body corporate as defined in the Corporations Act 2001 (Cth) or third party) employ, approach, solicit, engage or direct for purposes of employment or contracting services of any kind or type, any of the NGIS Personnel while the Agreement is on foot and for a period of 12 months thereafter, with such period commencing on the day after termination or expiry of the Agreement (whichever is the earlier).
2. In the event that the Client does not comply with clause 17.a., the Client agrees to immediately pay to NGIS a placement fee of:
  1. in the case of NGIS Personnel that is an employee, 150% of that employee’s total annual remuneration package with NGIS (including all superannuation, fees and on-costs); or
  2. in the case of NGIS Personnel that is a contractor, 150% of the average of the following two amounts: (1) the total payments made to or in respect of the contractor over the previous 12 months by NGIS (being the 12 months immediately preceding the Client’s breach of this clause), and (2) the expected total payments to be made to or in respect of the contractor over the subsequent 12 months by NGIS (being the 12 months immediately following the Client’s breach of this clause) if the contractor had continued to work with NGIS for those 12 months on an exclusive basis, in both cases as certified by NGIS’s accountant and including all fees and on-costs.
3. The Client agrees and acknowledges that the foregoing is a reasonable measure of damages that NGIS will incur as a result of the Client’s non-compliance with clause 17.1.
The Client may terminate the Agreement at any time and for any reason by giving NGIS a minimum of 30 days’ notice in writing.
NGIS may either (in its sole discretion) suspend performance of the Services or terminate the Agreement at any time by giving 30 days’ written notice to the Client where:
1. NGIS issues a notice of default to the Client pursuant to clause 27 and the breach the subject of that notice is not rectified to the satisfaction of NGIS (acting reasonably) within the timeframes stipulated in that clause; or
2. the Client does not give necessary instructions and information which NGIS reasonably requires in order to provide the Services within a reasonable time of any request(s) to do so; or
3. NGIS decides that continuing to provide the Services (or any of them) may breach professional ethics rules of conduct or is otherwise not feasible for any reason; or
4. the Client being a company is insolvent, goes into liquidation or has a receiver or manager or administrator appointed or is otherwise subject to any external administration or composition or arrangement for the benefit of its creditors; or
5. the Client being a person is insolvent, declared bankrupt or becomes subject to Part X of the Bankruptcy Act.
Nothing in this clause or Agreement shall effect the Client’s obligations and liability to pay all Fees and Disbursements incurred up to and including the date that the Agreement is terminated and, if applicable, any reasonable and direct loss or damage suffered by NGIS caused by or attributable to the termination of the Agreement (being liquidated damages owing to NGIS).
Clauses under headings ‘Fees and Terms of Payment’, ‘Intellectual Property’, ‘Confidentiality’ ‘Non Solicitation’ and ‘Personal Property Securities Act’ survive termination of the Agreement.
Notwitstanding clause 23, the total maximum liability of NGIS to the Client in respect of any Claims shall be the amount agreed in writing between the Client and NGIS, or AUD$100,000.00, whichever is the lesser amount. For the avoidance of doubt, the total maximum liability of NGIS in accordance with this clause shall not exceed $100,000 in the aggregate.
To the extent permitted by law, NGIS shall have no liability in respect of any Claims (including but not limited to):
1. in relation to the provision of the Services;
2. arising from any act or omission by NGIS relating directly or indirectly to the Services;
3. in the event that any transaction contemplated by the Client does not proceed;
4. for a failure or delay in the provision of the Services if such failure arises from circumstances beyond NGIS’s control;
5. except to the extent caused by the gross negligence or fraudulent act or omission or breaches of the Agreement by NGIS, (which are not due to the Client’s negligence, omissions, acts or breaches of the agreement), subject always to the exclusions contained in clause 24.
Time Limit:
1. To the extent permitted by law, NGIS shall be deemed to have been discharged absolutely from all Claims arising from the Services or arising from any act or omission of NGIS relating directly or indirectly to the Services at the expiration of one year from the completion of the Services or the occurrence of the act or omission from which the Claim arises.
2. After that date, the Client and any persons or entities claiming through or under the Client shall not be entitled to commence any action, proceeding or claim whatsoever against NGIS or any employee or agent of NGIS in respect of any Claim captured by clause 24a.
3. For the purposes of this clause 24, the date of completion of the Services will be the date of the last invoice issued by NGIS for the Services.
The Client shall indemnify and hold NGIS harmless from all Claims in relation to provision of the Services or arising from any act or omission by NGIS relating directly or indirectly to the Services except to the extent caused by the gross negligence or fraudulent act or omission or breaches of the Agreement by NGIS, (which are not due to the Client’s negligence, omissions, acts or breaches of the agreement), subject always to the exclusion in clause 24.
Notwithstanding anything to the contrary in the Agreement, NGIS shall not have any liability, and the Client shall not have any Claims against NGIS whatsoever and howsoever arising in relation to:
1. the Product; and
2. work performed by any third party except where the third party is engaged or employed by NGIS, (as evidenced in writing), and subject to that exception,
3. the Client shall indemnify and hold NGIS harmless against all liability and/or Claims in respect of or in connection with the Product and or work provided by any such third party.
Warranties
1. To the maximum extent permitted by law, the Services are provided without:
  1. any warranties or terms of any kind, either express or implied, including warranties of title, non-infringement, merchantability or of fitness for any particular purpose; and
  2. any warranties as to accuracy, completeness or currentness.
2. Any warranty which is implied by law, statute or otherwise is to the fullest extent permitted by law excluded.
3. The Client represents and warrants to NGIS that any instruction received by NGIS, (whether written, oral, by e-mail or provided by any other medium), from anyone who NGIS reasonably believes to be a director or officer of the Client or a person authorised to give instructions on behalf of the Client, is given by a person who is duly authorised to give such instructions and NGIS shall be entitled to rely upon any such instruction in providing the Services and carrying out its obligations under the Agreement.
4. The Client warrants and acknowledges that any Product supplied as part of the Services is not fault tolerant and is not designed or intended for use in life saving, life critical emergency response, insurance underwriting or with critical health and safety or online control equipment in hazardous environments that require failsafe performance.
The Client expressly acknowledges and warrants that NGIS shall have no liability, and the Client shall have no Claims against NGIS in respect of any work undertaken by NGIS and/or its contractors in carrying out the Services and that is under the direct supervision of the Client.
Dispute Resolution:
1. If either Party is in breach of the Agreement, or in the event that there is a dispute between the Parties to the Agreement, then the Party alleging the breach or dispute shall serve a default notice on the other Party setting out the full particulars of the dispute or the alleged breach and the acts required to rectify the breach (as the case may be).
2. Within 21 days of service of a default notice, representatives of the Parties shall meet to negotiate, in good faith, to resolve the breach and/or dispute.
3. If the breach or dispute cannot be resolved, the Party who served the notice may elect in writing to have the matter resolved by arbitration.
4. If a Party serves a notice electing to resolve a matter by arbitration:
  1. it shall be resolved in accordance with the provisions of the Commercial Arbitration Act 1985 and the Rules for the Conduct of Commercial Arbitrations for the time being of the Institute of Arbitrators and Mediators Australia;
  2. either Party shall be entitled to be represented by a legal practitioner;
  3. arbitration will be held in Western Australia unless otherwise agreed;
  4. the arbitrator is that as nominated by the Institute of Arbitrators and Mediators Australia, if available, their Western Australian branch; and
  5. the determination of the appointed arbitrator shall be final and binding upon the Parties and the arbitrator shall deemed to be acting as an expert.
5. No Party is permitted to commence formal proceedings against the other Party in respect of a breach or dispute under this clause nless the mechanism provided for in this clause has been complied with. For the avoidance of doubt, nothing in this subclause prevents either Party from applying to a court for urgent injunctive or other interlocutory relief.
6. During the existence of any breach or dispute and so long as the Agreement is not terminated in accordance with the Terms, the Parties must continue to perform all of their obligations under the Agreement, without prejudice to their position in respect of any breach or dispute unless the Parties otherwise agree in writing. The Client must continue to make payment of all Fees which are not the subject of the dispute.
No failure to exercise nor any delay in exercising any right, power or remedy by a Party to the Agreement operates as a waiver. A single or partial exercise of any right, power or remedy does not preclude any other or further exercise of that or any other right, power or remedy. A Party does not waive its rights under this document because it grants an extension or forbearance to any other Party. A waiver of a right on one or more occasions does not operate as a waiver of that right if that right arises again. The exercise of a right does not prevent any further exercise of that right or of any other right. If a Party does not exercise a right or remedy fully or at a given time, the Party may still exercise it later.
GST and Taxes:
1. In this clause:
  1. a“GST, “supply”, “taxable supply” and “tax invoice” have the same meaning as in A New Tax System (Goods and Services Tax) Act 1999; and
  2. a reference to payment being made or received includes a reference to consideration other than money being given or received
2. Any and all Fees stated in this agreement are exclusive of any charge levied by any government authority at the local government/council/shire level, or State/Municipal level, or Commonwealth/Federal level, which charge includes but is not limited to: GST; procurement/management/tendering fees; penalties and interest; duties; levies; rates; withholding tax; other applicable taxes; or any other government charge; collectively “Taxes”. Taxes specifically excludes NGIS’s income tax.
3. On presentation of a tax invoice or invoice, as the case may be, for the Services, the Client expressly agrees to pay NGIS for:
  1. GST levied on taxable supplies; and
  2. All other applicable Taxes levied on the Services.
Reference in this agreement to:
1. Clause deleted;
2. Clause deleted;
3. “Agreement” means the agreement between NGIS and the Client for the provision of the Services comprising of, collectively:
  1. The Terms;
  2. The Project Proposal;
  3. Any special conditions; and
  4. Any other document which NGIS considers, in its sole discretion (acting reasonably) forms part of the Agreement.
4. “Claim” or “Claims” means any claim, allegation, complaint, demand, cause of action, liability, proceeding, action, debt, damages or costs of any nature whatsoever and howsoever arising whether past, present or future, fixed or ascertained, known or unknown, actual or contingent and whether at law, in equity, under statute or otherwise, including (but not limited to) any claim in respect of the Services or arising out of tort, breach of statute, breach of warranty or guarantee or breach of the Agreement;
5. “Client” means the client as named in the Project Proposal;
6. “Confidential Information” means all trade secrets and all financial, marketing and technical information and know-how, including information regarding technology and processes, which is confidential or of a sensitive nature, but excludes any information which is in the public domain;
7. “Default Interest” means compound interest calculate daily at an annual rate 5% above the Commonwealth Bank Corporate Overdraft Reference Rate or, if that rate is no longer published, the interest rate quoted from time to time by NGIS’ bank for commercial loans exceeding $100,000;
8. “Disbursements” means all amounts payable by the Client to NGIS pursuant to clause 11;
9. “Documents” means drawings, reports, software, hardware, Product, specifications, bills of quantities, calculations, documents and materials (in any form or media);
10. “Fees” means the consideration payable in respect of the Services and Product (where applicable and subject to the definition of that term), monetary or otherwise, and if monetary, in the currency noted in the Project Proposal, which if not stated, is in Australian Dollars and the Fee includes inter alia: charges; rates; licensing fees; costs; reimbursements; royalties; interest; penalties; renewals; maintenance; foreign exchange adjustments; and amounts due for the provision, availability, use or procurement of Product but does not include any Disbursements;
11. “liability” means any claim, expense, demand, action, suit, proceeding, loss or damage of any kind or character (including without limitation legal costs and special, direct, indirect, punitive or consequential damages);
12. “NGIS Personnel” means any employee, director, officer, or contractor (including subcontractor) of NGIS;
13. “Party” means the Client or NGIS, as the case may be, and “Parties” means both NGIS and Client;
14. “Project Proposal” means the document to which these Terms are attached and or referenced to, and such Project Proposal may include inter alia: quote; estimate; response to tender; agreed statement of work; expression of interest or the like; ROM i.e. rough order of magnitude;
15. “Product” includes all software and or hardware noted in the Project Proposal, but unless otherwise stated in the Project Proposal, the Fees for Product and or the provision or use of Product pursuant to the Project Proposal and Services carried out by NGIS:
  1. Excludes: installation; maintenance; configuration, delivery to Client location; and
  2. Is subject to the rights, terms and conditions or the like, (“RTC”), which may apply to such Product, and which Client warrants and expressly agrees to abide by, irrespective of whether such applicable RTC’s have been provided to Client, and Client further indemnifies NGIS to the fullest extent permitted in law to breaches of such RTC by Client and its: employees; directors; officers; agents; advisors; contractors; subsidiaries; parent or sister organisations; related parties, including body corporates; partners; assigns or the like, (collectively “Client Extended”), which may apply to such Product; and
  3. The Client and or Client Extended expressly agrees in relation to any third party Product, that any rights, recourse or remedies which might be sought therein by the aforementioned, is solely against the relevant third party and that NGIS will have no liability to the Client and or Client Extended in regards to or otherwise in connection with the third party Product, other than for non-provision by NGIS, to the extent such provision was NGIS’s responsibility and within its reasonable control.
  4. Is subject to foreign currency adjustment, normally United States of America Dollars (USD) to Australian Dollars (AUD).
  5. The intention is that this clause 26.l is not to be read down to remove any inconsistencies which may exist in these Terms, the Project Proposal, and or any other document to which the Services relate, rather, the other conflicting clause(s) are to be consistent with this clause.
16. “Services” means the work to be carried out as described in the Project Proposal, including Product;
17. “Terms” means the terms and conditions contained in this document and being the latest version of such document.
Reference in this agreement to:
1. legislation (including sub-ordinate legislation) is to that legislation as amended, reenacted or replaced, and includes any subordinate legislation issued under it;
2. AUD$, A$, $A, dollar or $ is to Australian currency;
3. a document (including, without limitation, a reference to the Agreement) is to the document as amended, varied, supplemented, novated or replaced from time to time, except to the extent prohibited by the document;
4. the singular shall be deemed to include the plural and reference to the masculine shall be deemed to include the feminine;
5. any party to this agreement shall mean and include the party and the successor, administrator, personal representative, transferees and assigns of the party; and
6. headings are for convenience only and do not affect the interpretation or meaning of these Terms.
In the interpretation of a provision of the Agreement, a construction adverse to a Party must not be preferred soley on the ground that:
1. that Party was responsible for the preparation of the Agreement or the relevant provision; or
2. the Agreement or the relevant provision favours the person relying upon it.
A notice to be served under this agreement shall be deemed to have been duly served if it is in writing and is sent to the address appearing in the Project Proposal (or as notified by the relevant Party from time to time) for each Party by certified mail, facsimile or personal delivery.
Neither Party may assign, transfer or sub-let any obligation under this agreement without the written consent of the other.
Nothing in the Agreement shall constitute or create the relationship of partnership, employment, agency or joint venture between NGIS and the Client.
If any provisions or part provisions of the Agreement are invalid, unenforceable or illegal then it shall be deemed deleted from this agreement and the remaining provisions and part provisions continue to apply with full force and effect.
These terms and conditions constitute the entire agreement between the Client and NGIS and apply to all work undertaken by NGIS for the Client pursuant to the Project Proposal.
This agreement is governed by the laws in force in Western Australia and under the jurisdiction of the courts of Western Australia.
Force Majeure:
1. NGIS will not be liable in damages and the Client will not have any Claims as against NGIS for any failure to provide the Services which is caused, whether wholly or partially, by an event beyond its reasonable control, including, but not limited to: act of God; war (whether declared or not); fire; explosion; acts of terrorism; rioting; burglary; theft; civil disturbances; restrictions by governments, (local, municipal, State or Federal), or other competent authority; general economic trends; strikes, industrial action or lockouts, (whether at the Client’s premises or not); accidents either at the Client’s premises or when in transit to or from those Premises; failure by subcontractors and the late arrival of Product, inventory or other material; and weather, (collectively “Force Majeure”).
2. If a Force Majeure event occurs and the Client is liable to pay Fees in relation to the Services, Client expressly agrees to pay NGIS these Fees even if the Service is incomplete or delayed.
In this section entitled ‘Personal Property Securities Act’ , ‘attach’, ‘accounts’, ‘accessions’, ‘proceeds’ ‘financing statement’, ‘financing change statement’, ‘security agreement’ and ‘security interest’ have the meanings given to those terms by the Personal Property Securities Act 2009 (Cth) (“PPSA”).
The Client expressly acknowledges and agrees that:
1. The Agreement and these Terms constitute a security agreement for the purposes of the PPSA;
2. The rights and obligations under the Agreement create a security interest in favour of NGIS in any goods provided by NGIS to the Client both previously supplied and any future goods that may or will be supplied (“Goods”);
3. The relevant security interest will attach to the Goods and all proceeds, including any accounts and accessions, on delivery of the Goods to the Client;
4. In addition to the above, the rights and obligations under the Agreement create a security interest in all present and after acquired property of the Client to secure payment of all amounts outstanding to NGIS by the Client from time to time under the Agreement;
5. NGIS may lodge a financing statement and financing charge statement on the Personal Property Securities Register (“PPSR”) in respect of any security interest granted by the Client to NGIS by virtue of the Agreement and NGIS reserves the right to charge an administration fee for registration, maintenance, or discharge of any registered security interest on each occasion that it lodges a financing statement or financing charge statement on the PPSR.
6. Sections 95, 118, 121(4), 130, 132(3)(d), 132(4), 142 and 143 of the PPSA doe not apply to the Agreement and the Client waives its rights under those sections and under section 157 of the PPSA.
The Client undertakes to:
1. Sign any further documents and/or provide any further information, such information to be complete, accurate and up to date in all respects, which NGIS may reasonably require to register a financing statement on the PPSR;
2. Reimburse NGIS for all expenses incurred in registering a financing statement or financing charge statement on the personal Property Security Register; and
3. Give NGIS not less than 14 days’ prior written notice of any proposed change in the Client’s name and/or any other change in the Client’s details which may affect any financing statement or any security interest granted to NGIS by the Client.
The Client waives any rights to receive notice of any verification statement issued under the PPSA.
Risk and title in any Services provided by NGIS or pursuant to the Project Proposal, only passes to the Client upon full payment by the Client to NGIS for all Fees, Disbursements and all other monies payable to NGIS by the Client in accordance with the Agreement.
The Client acknowledges and expressly agrees:
1. It has no claim to any title until full payment of all amounts payable to NGIS under the Agreement has been made to NGIS; and
2. That for certain Services, title may never pass to Client due to third party rights which may exist.
The Agreement may only be varied in writing signed by both Parties.
Any amendments, add-ons, variations, schedule changes or the like to the Services must be agreed to in writing by NGIS, in its sole discretion.
If applicable, unless otherwise specified in writing in the Project Proposal, the persons to provide the Services shall be determined by NGIS at its sole discretion.
If in providing the Services circumstances arise which require skills outside the field of practice of NGIS then NGIS may, after obtaining Client approval, which will not be unreasonably withheld, engage a subcontractor to provide the relevant skills
NGIS may at any time vary the Terms by:
1. publishing the varied Terms on the NGIS website; and/or
2. providing notice of the varied Terms as described in these Terms to the Client;
By continuing to accept and/or use the Services, Client acknowledges and agrees to full acceptance of the varied Terms.