General Terms And Conditions – Codersoft Pty Ltd

Updated 25/6/2021

CONTRACT
1. The Contract will consist of the following documents:
  1. These General Terms and Conditions; and
  2. Any agreed work order or scope of works (whether written or verbal)
2. If there is any conflict or inconsistency between the documents constituting the Contract, unless otherwise provided, the documents will rank in order of precedence in accordance with the order in which they are listed in clause 1.1.
3. The terms of the Contract shall apply to all work performed by Codersoft.
4. The Contract contains the entire agreement between Codersoft and the Customer and supersedes all prior communications and negotiations between the parties.
5. Unless otherwise specified in the Contract, no amendment or variation of the Contract is valid or binding on a party unless made in writing and signed by the Customer and Codersoft.
CHARGES AND PAYMENT
1. Invoiced Charges
  1. The Customer shall pay the fees by the Due Date as specified in the invoice throughout the Term.
2. Additional Charges
  1. In addition to the fees and charges disclosed in the invoice or such other fee disclosure document provided by Codersoft to the Customer, additional charges may also be applicable including but not limited to the following:
    1. If the information the Customer provided to Codersoft to determine the services required was incomplete or inaccurate;
    2. If an Excluded Event occurs Codersoft may also charge the Customer the costs of any service, modification, repair or replacement required as a result of an Excluded Event;
    3. Any other costs and charges agreed between the Customer and Codersoft from time to time.
3. Overdue Payments
  1. Codersoft reserves the right to charge interest on any overdue amount payable to Codersoft by the Customer under the Contract. Interest will be charged from the Due Date until payment is received at the rate specified by the Penalty Interest Rate Act 1983 (Vic).
  2. The Customer will be liable to pay to Codersoft all expenses (including reasonable legal costs and expenses and the fees of Codersoft’s debt recovery agents) incurred by Codersoft in relation to recovering payments due under the Contract.
  3. In the circumstances of any overdue payment to Codersoft, Codersoft may block access to any services provided to the Customer, including data housed upon such services. Codersoft shall not be liable for any costs associated with this downtime or any inability of the Customer to access data, and any regular usage fees will still be incurred by the Customer even during this time where the service is unavailable.
TESTING AND ACCEPTANCE
1. The Customer shall have 7 days to perform acceptance testing of any deliverable. If no notice of non-conformance to the adopted acceptance criteria is reported during this period, the deliverables and/or services are deemed accepted and fit for purpose by the Customer.
2. The criteria for acceptance testing shall be determined by the Customer.
INDEMNITY
1. The Customer shall indemnify Codersoft from and against any Liability which may be incurred or suffered by Codersoft arising from any one or more of the following:
  1. the breach by the Customer of a material term or any of the Customer’s obligations under the Contract;
  2. any negligent act or omission or wilful misconduct by the Customer arising out of the Customer’s obligations under the Contract.
LIABILITY AND WARRANTIES
1. Except as expressly provided in the Contract, any terms, conditions, warranties, undertakings, inducements or representations whether express, implied, statutory or otherwise relating in any way to the subject matter of the Contract are excluded to the maximum extent allowed by the law.
2. Where Codersoft is not permitted to exclude its liability for any loss or damage in connection with Codersoft’s breach of a Consumer Guarantee (as defined under the Australian Consumer Law), but are permitted to limit its liability for such a breach, then, unless the Customer is able to establish that it is not fair and reasonable for Codersoft to do so, Codersoft’s liability to the Customer is limited to:
  1. in the case of goods:
    1. replacement of the goods;
    2. supply of equivalent goods;
    3. repair of the goods;
    4. payment of the cost of replacing the goods;
    5. payment of the cost of acquiring equivalent goods; or
    6. payment of the cost of having the goods repaired; and
  2. in the case of services:
    1. resupply of the services; or
    2. payment of the cost of the resupply of the services.
3. The limitations of liability in clause ‎5.2 do not apply to a breach of any Consumer Guarantee relating to goods or services of a kind ordinarily acquired for personal, domestic or household use or consumption.
4. The Customer acknowledges it has not relied on any representation or warranty made by Codersoft which has not been stated expressly in the Contract or upon any descriptions or illustrations or specifications contained in any document including any catalogues or material published by Codersoft.
5. Except as required by law or regulation or as set out in this Contract, Codersoft expressly excludes all Liability for all warranties, conditions, non-fraudulent representations, express or implied concerning any deliverables and/or services, including but not limited to those relating to the availability, performance, quality or fitness for purpose and in no event shall Codersoft be liable for any any indirect, special, consequential, or incidental damages or loss of revenue or business profits, however caused, regardless of whether or not they were advised of the possibility of such damages.
6. The provisions of this clause ‎5 survive the termination of the Contract.
TERMINATION AND SUSPENSION
1. Termination by Codersoft
  1. Codersoft may, without liability, terminate the Contract or provisioning of the services at any time prior to the Commencement Date, if Codersoft reasonably determines that it is not technically or operatively feasible or commercially viable to provide services to the Customer.
  2. Codersoft may, without liability, at its option either terminate or suspend the Contract by giving notice to the Customer if:
    1. the Customer breaches its obligations under the Contract and such breach is not capable of remedy or the Customer does not remedy that breach within 7 days after Codersoft gives it notice requiring it to do so;
    2. the Customer fails to make payment by the Due Date and such amounts remain unpaid for 5 BusinessDays after receiving notice from Codersoft of such non-payment;
    3. The Customer suffers an Insolvency Event.
  3. If the Contract is terminated pursuant to clause ‎6.1.2, the Customer must pay to Codersoft an amount representing a pro rata proportion of all deliverables and/or services to be provided.
2. Termination by Customer
  1. The Customer may after the Commencement Date, terminate the Contract, without liability if Codersoft commits a serious breach of the Contract, and has not remedied that breach within 7 days of the becoming aware of the breach.
3. Termination By Either Party
  1. Either party (“Affected Party”) may, without liability, terminate the Contract with immediate effect from the date of service of a notice (or with effect from a later date as the Affected Party may nominate in a notice) if any Force Majeure Event prevents the provision of services for more than 30 consecutive days.
4. Following Termination
  1. Termination of the Contract shall be without prejudice to the right of Codersoft to receive any amounts which may have become due for payment prior to such termination but which have not been paid.
  2. On termination of the Contract for any reason:
    1. each party must, on request by the other party, immediately return or destroy the other party’s Confidential Information, except to the extent that it is required by law to retain the other party’s Confidential Information;
    2. Codersoft may immediately stop supplying services to the Customer;
    3. unless the Contract expressly states otherwise, each persons’ accrued rights and obligations are not affected; and
    4. the clauses of the Contract which are by their nature intended to survive cancellation of the Contract will do so.
INTELLECTUAL PROPERTY
1. Codersoft owns all material (including the Intellectual Property Rights) developed by it, or its personnel, or at its or their discretion.
2. Unless otherwise agreed, Codersoft shall grant to the Customer a perpetual, non-exclusive, royalty-free licence to use this material, or other material licensed by Codersoft, as part of the services and/or deliverables. This permission is subject to any reasonable conditions which Codersoft may impose from time to time. Any data collected or held by the Customers and captured by systems developed by Codersoft shall be owned by the Customer.
3. At times, Codersoft may utilise “shared” code to improve efficiencies in development. Where this is done, the Intellectual Property Rights shall remain with Codersoft or the third party provider where the “shared” code is a published library. Codersoft shall invoice the Customer the costs of any fees for use of “shared” code.
CONFIDENTIALITY
1. Codersoft and the Customer each agree to keep confidential the other’s Confidential Information and to not use the Confidential Information for any other purpose than that for which it was disclosed or which may cause the Provider loss.
2. The Provider retains all property rights in the Confidential Information
3. The Recipient may disclose Confidential Information (to the extent reasonably necessary) to its Representatives for the sole purpose of assisting the Recipient for purposes related to the supply of the services (or for purposes which would be reasonably expected) including billing and account management, business planning and product development.
4. The obligations of confidentiality in this clause 8 do not apply to the extent disclosure is required by law or the rules of a stock exchange, a direction by any government agency, or disclosure to professional advisors in connection with the supply of the services.
5. The Recipient acknowledges that a breach of this clause ‎8 may cause the Provider irreparable damage for which monetary damages would not be an adequate remedy. Accordingly, in addition to other remedies that may be available, the Provider may seek injunctive relief against such a breach or threatened or suspected breach.
6. The Recipient’s obligations with respect to the Confidential Information survive termination and bind the Recipient until the relevant Confidential Information has become part of the public domain other than in breach of an obligation of confidentiality.
ASSIGNMENT
1. The Customer shall not sub-let, assign, dispose of or otherwise deal with its interest in or under the Contract without the prior written consent of Codersoft and any such consent shall be on terms acceptable to Codersoft.
2. Codersoft shall be entitled to novate, assign or sub-contract its interest in and obligations under the Contract or any part thereof to any third party upon written notice to the Customer. Codersoft shall have no further obligations to the Customer in respect of any matter relating to such novation or assignment on and from the date of the notice provided to the Customer pursuant to this clause 9.
RELATED BODIES CORPORATE
1. Codersoft may provide the services through the use of any of Codersoft’s Related Bodies Corporate.
2. The Customer acknowledges and agrees that any debt owed under this Contract is a debt owed to Codersoft and that Codersoft may take any necessary action in relation to any such debt notwithstanding that the right or obligation giving rise to the debt was satisfied by Codersoft’s Related Bodies Corporate.
NOTICES
1. Notices for the purpose of the Contract shall be in writing. A notice given to a party at that party’s address set out on the face or at such other address as may be substituted by written notice from such party to the other shall:
  1. in the case of prepaid post, be presumed to be given 5 days after the date of posting;
  2. be presumed to be delivered at the time of delivery if delivered during normal business hours;
  3. be presumed to be given upon receipt by the sender of a satisfactory transmission confirmation report indicating due transmission without error in the case of facsimile transmission.
  4. be presumed to be given upon the sender’s computer system indicating transmission in the case of an email transmission.
WAIVERS
1. No waiver or indulgence by any party to the Contract shall be binding upon the parties unless in writing.
GOVERNING LAW
1. This Contract shall be governed by the law of Victoria, Australia and the parties agree to submit to the jurisdiction of the Courts of Victoria, Australia.
GOODS & SERVICES TAX
1. In this clause the expressions “consideration”, “GST”, “input tax credit”, “recipient”, “supplier”, “supply” and “tax invoice” have the meanings given to those expressions in the A New Tax System (Goods and Services Tax) Act 1999.
2. All prices or other sums payable or consideration to be provided and which are expressly stated in this Contract are exclusive of GST unless otherwise indicated.
3. If GST is payable by the supplier on any supply made under the Contract the recipient will pay to the supplier an amount equal to the GST payable on the supply. Subject to the supply of a tax invoice that amount will be paid at the same time the consideration for the supply is payable under the agreement and will be paid in addition to the consideration. The supplier shall provide the recipient with a tax invoice in respect of the supply.
4. Where the recipient is required to pay for or reimburse an expense or outgoing of the supplier, the amount to be paid by the recipient is the amount of the expense or outgoing less any input tax credit in respect of such expense or outgoing that the supplier is entitled to.
5. Any invoice or claim provided by the supplier under the Contract will be accompanied by a tax invoice or other approved document providing the recipient with the ability to claim an input tax credit.
DEFINITIONS
1. Codersoft – means Codersoft Pty Ltd (ABN 65 117 505 558) and its authorised subcontractors and agents.
2. Business Day – means a business day in the city where the services are being provided.
3. Commencement Date – means the date upon which Codersoft commences providing services pursuant to the Contract.
4. Confidential Information – of a party means all information of a confidential nature relating to that party including anything which is indicated to be subject to an obligation of confidence which is disclosed by that party to the other party in relation to this Contract to supply service or comes to the knowledge or into the possession of the other party in connection with this Contract but does not include information:
  1. the party creates (whether jointly or alone) independently of the other party’s Confidential Information;
  2. that is public knowledge (other than as a result of a breach of confidentiality by the party or any person to whom the party has disclosed the information); or
  3. obtained without restriction as to the further disclosure from a source other than the other party through no breach of confidentiality by that source.
5. Customer – means the party to whom the services are being provided by Codersoft and any of its employees, sub-contractors, agents and representatives.
6. Day or day – means any day not limited to a Business Day
7. Due Date – 7 days from the date of the Invoice, unless specified otherwise by Codersoft.
8. Excluded Event – means:
  1. a breach of the Contract by the Customer;
  2. a Force Majeure Event;
  3. a negligent or fraudulent act or omission of the Customer or the Customer’s personnel.
9. Force Majeure Event – means:
  1. any act of god or act of nature, fire, flood, storm, explosion, sabotage, riot, act of war whether declared or not, requirement or restriction of governmental authorities, inability or delay inthe grant of governmental or other approvals, consents, permits, licences or authorities or any other like event; or
  2. any strike, lockout, work stoppage or other industrial dispute of any kind; or
  3. any act or omissions of a third party which affects the provisions of the Services, including a failure to provide goods and services or access to premises; or
  4. any other similar circumstances beyond the reasonable control of the affected party.
10. General Terms and Conditions – means the general terms and conditions contained in this document.
11. Insolvency Event – means:
  1. bankruptcy proceedings are commenced against the Customer, or the Customer is declared bankrupt;
  2. any step that is taken to enter into any scheme or arrangement between the Customer and its creditors;
  3. any step is taken by a mortgagee to enter into possession or dispose of the whole or any party of the Customer’s assets or business;
  4. any step is taken to appoint a receiver, a receiver and manager, a trustee in bankruptcy, a liquidator, a provisional liquidator, an administrator or other like person to the Customer or to the whole or any part of the Customer’s assets or business;
  5. the Customer suspends payment of its debts generally; or
  6. the Customer is or becomes unable to pay its debts when they are due or it is or is presumed to be insolvent for the purposes of any provision of the Corporations Act 2001 (Cth).
12. Intellectual Property Rights – means any intellectual or industrial property rights (including any registered or unregistered trademarks, patents, designs, or copyright) and includes the right to have Confidential Information kept confidential.
13. Liability – means any direct or consequential liabilities, claims, losses, costs, charges, damages, injury or expenses of any nature.
14. Provider – means a party that discloses its Confidential Information to another party.
15. Recipient – means a party that receives or obtains Confidential Information of another party.
16. Related Body Corporate has the meaning given to that expression in the Corporations Act 2001 (Cth).
17. Representative – means a director, officer employee or agent.