These Client Terms, together with any Client Form (defined in clause 2), set out the agreement (this ‘Agreement’) under the terms of which Thomson Environmental Systems Pty Ltd ABN 83 079 272 478 (TES) provides Products and/or Services (defined in clause 3) to you or the company which you represent (the Client).
Capitalised words and phrases used in these terms and conditions have the meaning given.
(a) to that word or phrase in a Client Form
(b) by the word immediately preceding any bolded and bracketed word(s) or phrase(s); or
(c) in the definitions set out below...
(a) These Client Terms will apply to all the Client’s dealings with TES, including being incorporated in all agreements, quotations or orders under which TES is to provide products and/or services to the Client (each a Client Form) together with any additional terms included in such Client Form (provided such additional terms are recorded in writing).
(b) The Client will be taken to have accepted this Agreement if the Client accepts a Client Form, or if the Client orders, accepts or pays for any products and/or services provided by TES after receiving or becoming aware of this Agreement or these Client Terms.
(c) The Client is responsible for confirming that the Client Form accurately specifies (if applicable):
(i) the quantity and specifications of the Products and/or Services required; and
(ii) the agreed Fees, other rates and the Installation Date, if applicable.
(a) In consideration for the payment of the fees set out in the applicable Client Form (Fees), TES will provide the Client with services set out in a Client Form (Services) and/or goods set out in a Client Form (Products).
(b) Where the context permits the terms ‘Products’ and ‘Services’ shall be interchangeable when used in this Agreement.
(c) The Client Form is valid for 30 days from the date of issue. To the extent permitted by law, the Client Form is subject to changes in price to cover an increase in actual costs. Such increases may result from exchange rate differences, government taxes or charges increasing after the contract is signed that may have been unforeseeable in the initial quote.
(d) Once the Client Form has been accepted, the Client will commit to purchase the Products and/or Services and cannot cancel or revoke the Client Form except to the extent as expressly permitted by this Agreement.
(e) The timing of the Products and/or Services and any due dates for deliverables will be agreed with the Client. There may be delays in providing the Products and/or Services, if the Client does not provide adequate or correct information for TES to perform the Services.
(f) Unless otherwise agreed, TES may, in its discretion:
(i) not commence work on any Products or Services until the Client has paid any Fees or deposit payable in respect of such Products or Services; and
(ii) withhold delivery of Services until the Client has paid an invoice in respect of such Services.
(a) (General) The Client must provide TES with all documentation, information and assistance reasonably required for TES to perform the Services.
(b) (Liaison) The Client agrees to liaise with TES as it reasonably requests for the purpose of enabling TES to provide the Services.
(c) (Ownership) The Client warrants that it is the owner of the Site or has obtained authority from the owner/s of the Site for the Services to be performed on the Site.
(d) (Access to Site) The Client agrees to provide TES with access to the Site and the Client’s personnel, to the extent reasonably required by TES to perform the Services.
(e) (Capacity) The Client warrants that it has full authority to enter into this Agreement and grant the rights and licences within it, and comply with the obligations within it.
(f) (Permits) The Client warrants that they hold valid licences or are otherwise permitted to own and use the Products, and to have the Products installed at the Site (Permits). TES reserves the right to request proof of such Permits, cancel any Client Form in the absence of such Permits and charge administration fees if orders are placed for Products where the Client does not hold such Permits.
(g) (WH&S) The Client must ensure that the Site complies with Work Health and Safety standards and is otherwise in a suitable condition for TES personnel to perform the Services.
(h) (Laws) The Client agrees that it will not, by receiving or requesting the Products or Services:
(i) breach any applicable laws, rules or regulations (including any applicable privacy laws); or
(ii) infringe the intellectual property rights or other rights of any third party or breach any duty of confidentiality.
(a) The Client must allow TES access to any premises, or required areas of any premises (Premises) to allow TES to provide the Services, including to the Site. This may include the removal of any structure, fittings or fixtures to install the relevant Products.
(b) Unless otherwise agreed in writing, the Client must obtain any necessary authority or approval (including strata or building management approval if applicable) so that TES can carry out the Services.
(c) The Client must conduct or facilitate any inductions, training or supervision or other requirements so that TES has full access to carry out the Services.
(d) Where TES is unable to gain access to the Premises due to the Client’s non-compliance with this clause 5.1, omission, fault or otherwise, it is the Client’s responsibility to reschedule any Services and TES reserves the right to claim any expenses including travel and lost income and to charge this to the Client.
(e) The Client warrants that the Premises are safe for TES and its personnel to enter and perform the Services including, where applicable, complying with any relevant occupational health and safety legislation and requirements.
(a) TES will rely on the accuracy of any plans, specifications and other information the Client provides, unless otherwise agreed by the parties in writing. The Client acknowledges and agrees that if any of this information is inaccurate, TES accepts no responsibility for any loss, damages, or costs arising in relation to any such inaccurate plans, specifications or other information provided by the Client.
(b) Where the Client provides TES with any measurements, or quantities of Products or other materials, required to complete the Services, it is the Client’s responsibility to verify the accuracy of these measurements and quantities, before the Client or TES places an order based on these measurements and quantities. TES accepts no responsibility for any loss, damages, or costs, however resulting from the Client’s failure to comply with this clause 5.2(b).
The Client acknowledges and agrees that:
(a) any information provided to the Client as part of or in connection with the Services is general in nature and may not be suitable for the Client's circumstances; and
(b) it is the Client’s responsibility to comply with applicable regulations relevant to the Client’s business, including industrial relations laws and privacy laws.
(a) (Work times) The Client acknowledges and agrees that TES will provide the Services between 8:30AM to 4:30PM on weekdays (Work Hours).
(b) (After Hours) If the Client requires Services to be performed After Hours, including where the Client fails to make the Site available during Work Hours, the Client will be required to pay the after hours work rate as specified in the Client Form or as otherwise agreed between the Client and TES.
(c) (Additional Work) If the Client requires any services additional to those agreed in the Client Form, that work will be performed at the work rate as specified in the Client Form or as otherwise agreed between the Client and TES.
The Client must pay to TES fees in the amounts and at the times set out in the Client Form or as otherwise agreed in writing.
Unless otherwise agreed in the applicable Client Form:
(a) if TES issues an invoice to the Client, payment must be made by the time(s) specified in such invoice; and
(b) in all other circumstances, the Client must pay for all goods and services within 30 days of receiving an invoice for amounts payable.
The Client must pay Fees using the relevant fee payment method as specified in a Client Form or as otherwise agreed between the parties.
Unless otherwise agreed in writing:
(a) the Client will bear all service charges in relation to the operation of equipment by TES to carry out installation, if installation is included in the applicable Client Form;
(b) the Client will bear all travel, accommodation and related expenses reasonably incurred by TES in connection with a Client Form; and
(c) any third party costs incurred by TES in the course of performing the Services may be billed to the Client, unless specifically otherwise provided for in the Client Form.
Unless otherwise indicated, amounts stated in a Client Form do not include GST. In relation to any GST payable for a taxable supply by TES, the Client must pay the GST subject to TES providing a tax invoice.
TES reserves the right to charge credit card surcharges in the event payments are made using a credit, debit or charge card (including Visa, MasterCard). We do not accept American Express.
If the Client does not pay an amount due under this Agreement on or before the date that it is due:
(a) the Client must pay TES interest at the rate of 1.5% per month on the amount due, calculated daily;
(b) TES may seek to recover the amount due by referring the matter to debt collectors;
(c) the Client must reimburse TES for any costs it incurs, including any legal costs, in recovering the amount due or enforcing any of its rights under these terms; and
(d) the Client authorises TES, its employees and agents to enter any Premises occupied by the Client or any other place where Products are located and use reasonable force to retake possession of the Products without liability for trespass or any reasonable damage.
(a) The Client acknowledges that despite TES’s reasonable precautions, Products may be listed at an incorrect price, or with incorrect availability and/or other information, due to typographical errors and/or oversight. In such circumstances, TES reserves the right to substitute the Products with a comparative product, if agreed by the Client or cancel the Client Form, even if the Client Form has been paid for and previously accepted by TES.
(b) If TES cancels a Client Form in accordance with 8(a), TES will, as soon as practicable, contact the Client and issue a refund for any payment the Client has made for the cancelled order, except for any Products which have been specifically customised for the Client (Custom Products).
(c) Subject to clause 8(b), the Client acknowledges and agrees that all Custom Products are non-refundable.
(d) TES will endeavour to make any refund under this clause using the same payment method as the payment method used by the Client during the original purchase, however may vary this method at its discretion.
TES endeavours to ensure that the descriptions and specifications in relation to the Products on its website or in catalogues are accurate. However, photographs, drawings, illustrations, weights, dimensions and any other particulars accompanying, associated with or given in a quotation, descriptive literature or a catalogue are based on information which may be provided by manufacturers and suppliers and, as such TES does not guarantee that those descriptions and specification are accurate or free from errors or omissions, except to the extent required by applicable law. TES reserves the right to make any necessary corrections to the descriptions or specifications without notice.
(a) TES will be entitled to change the Installation Date on the date of the installation, if weather conditions, lack of access or other circumstances beyond TES’s control, do not permit the Services to be carried out.
On the Installation Date, the Client must:
(a) be present at the Site and, if reasonably requested by TES, remain there while the installation is being carried out;
(b) provide access to all personnel, equipment and vehicles reasonably required to carry out the installation;
(c) ensure that TES has access to reasonably accessible power outlets at the Site, where required for the duration of the Services and the installation of any Products;
(d) ensure the security and safe keeping of TES equipment which is required to be left and stored at the Site during the duration of the Services, noting that equipment left at the Site shall be at the risk of the Client (however ownership shall at all times remain with TES);
(e) ensure that the Site is clean and ready for TES to carry out the Services; and
(f) if the Client is not at the Site on the Installation Date and/or the Site is not clean and ready, TES will be entitled to charge the Client a call-out fee for each member of TES’s personnel who were booked to attend the Site.
(a) The Client acknowledges the installation might occasion minor damage to the Site. Where such damage occurs, TES will use its best endeavours to repair the damage however will not be liable for any minor damage or for damage arising out of any pre-existing conditions of the Site.
(b) Where the Client incurs costs repairing any damage to the Site occasioned during the installation, whether by employing third parties to conduct repairs or otherwise, TES will not be liable for such costs, unless TES agrees to remedy such damage in advance in writing.
(a) Notwithstanding anything to the contrary express or implied in this Agreement, the parties agree that TES retains full title to the Products and title will not at any time pass to the Client until the purchase price for the Products and all amounts owing in respect of the Products are paid to TES notwithstanding:
(i) the delivery or collection of the Products to/by the Client (as the case may be);
(ii) installation in or attachment of the Products to the Client’s property; and/or
(iii) the possession and use of the Products by the Client.
(b) Even if TES retains ownership of the Products, all risk for the Products passes to the Client on delivery of the Products to the Client or the nominee of the Client.
(c) TES may at its option keep or resell Products retaken from the Client.
(d) The Client acknowledges and agrees that:
(i) it will, if requested by TES, return the Products to TES following non-fulfilment of any obligation of the Client (including payment of monies) without limiting any other rights TES may have;
(ii) it will deliver up the Products to TES upon demand by TES and give TES or its agents or authorised representatives the right to enter any Premises occupied by the Client and any Premises where it believes any Products may be stored (without liability for trespass or any resulting damage) and to use the name of the Client and to act on its behalf, if necessary, to recover possession of the Products and agrees to indemnify TES and its agents and/or authorised representatives from any damage, injury and/or loss arising from such recovery or attempted recovery of the Products from the Client's possession or control;
(iii) it holds the proceeds, book debts and accounts receivable arising from selling or hiring of the Products on trust for and as agent for TES immediately when they are receivable or are received; and
(iv) TES may recover as a debt due and immediately payable by the Client all amounts owing by the Client to TES in any respect even though title to the Products has not passed to the Client.
(a) Unless otherwise indicated, amounts stated in Client Forms, on TES’s website or in stores, do not include delivery.
(b) For Products to be delivered, TES will charge the Client for delivery (notwithstanding that it may not have previously done so).
(c) Delivery is to the delivery point specifically accepted by TES.
(d) If TES is unable to complete the delivery within the agreed time schedule due to the Client’s absence or other fault of the Client, the Client will be liable for all charges and costs incurred, including but not limited to warehousing, transportation and redelivery.
(e) If the Client organises delivery independently of TES, TES shall not be held liable for non-delivery, lateness of delivery or loss or damage of Products during transit.
(f) TES may, at its discretion, deliver the Products to the Client in any number of instalments.
Unless TES is delivering the Products, TES shall not be liable for loss of or damage to Products in transit and the Client must make all claims for such loss or damage against the carrier. TES encourages the Client to take out insurance to protect itself for loss of or damage to Products in transit.
Where the Client considers that any Products provided by TES are defective, the Client must, within 10 Business Days of receiving the Products, inform TES of that fact in writing.
Where Products are the subject of a notice under clause 13.1:
(a) the Client must, at TES’s option:
(i) leave the Products in the state and condition in which they were delivered until such time as TES or its duly authorised agent has inspected the Products; or
(ii) send TES photographs, descriptions or other material evidencing the defects in the Products at firstname.lastname@example.org.
(iii) send TES the Products for TES to inspect on TES request. In doing so, the Client must do all that is reasonably necessary to mitigate any further harm or damage to the Products by packaging and storing it in a way as if they had no defect.
(b) TES will inspect the Products and/or evidence of defects in the Products within a reasonable time after notification by the Client; and
(c) if paragraph 13.2(a) is not complied with, the Client will be taken to have accepted the Products and TES will be entitled to the price for the Products set out in any Client Form.
TES reserves the right to charge the Client a call out fee, if upon inspection of the Products in accordance with clause 13.2(a)(i), TES determines that the Products are not defective in accordance with clause 13.5.
Subject to clause 18, if, upon inspection, in the reasonable opinion of TES:
(a) the Products are defective; and
(b) the Products were not damaged by the Client and/or the Client did not fail to take reasonable steps to prevent the Products from becoming damaged; or
(c) the Products are otherwise not in conformity with the Client Form, then at the discretion of the Client, TES will:
(i) replace the Products or supply the equivalent of the Products;
(ii) repair the Products;
(iii) pay the Client the cost of replacing the Products or acquiring equivalent Products; or
(iv) pay the Client the cost of having the Products repaired.
If, upon inspection, in the reasonable opinion of TES:
(a) the Products are not defective; or
(b) the Products are defective due to an act or omission of the Client, misuse, failure to use in accordance with the manufacturer’s instructions, or failure to take reasonable care by the Client; and
(c) the Products are otherwise in conformity with the Client Form, TES will refuse the Client’s return, the Client will be taken to have accepted the Products and TES will be entitled to the price for the Products set out in any Client Form.
Except where notice has been given in accordance with clause 13.1, acceptance of the Products is deemed for all purposes to have taken place:
(a) when the Client makes known to TES that it has accepted the Products;
(b) when the Client, after delivery of the Products, does any act in relation to them which is inconsistent with TES’s ownership of the Products; or
(c) upon the expiry of seven (7) days from the date of delivery, whichever first occurs.
Products that have been subject to regular wear and tear will not be considered to be defective.
(a) The Client must pay additional service fees for changes to Services requested by the Client which are outside the scope set out in the relevant Client Form (Changes).
(b) Unless otherwise agreed in writing, TES may at its discretion extend or modify any delivery schedule or deadlines for the Services as may be reasonably required by such Changes.
Unless otherwise agreed in writing:
(a) all displays or publications of any deliverables provided to the Client as part of the Services (Deliverables) must, if requested by TES, bear an accreditation and/or a copyright notice including TES’s name in the form, size and location as directed by TES; and
(b) TES retains the right to describe the Services and reproduce, publish and display the Deliverables in TES’s portfolios and websites for the purposes of recognition or professional advancement, and to be credited with authorship of the Services and Deliverables in connection with such uses.
(a) Any Service that requires TES to acquire goods and services supplied by a third party on behalf of the Client may be subject to the terms & conditions of that third party (Third Party Terms), including ‘no refund’ policies.
(b) The Client agrees to familiarise themselves with any Third Party Terms applicable to any such goods and services supplied and, by instructing TES to acquire the goods or services on the Client’s behalf, the Client will be taken to have agreed to such Third Party Terms.
(c) For the purposes of this clause 16, the parties acknowledge that Third Party Terms are limited only to the manufacturers’ warranty terms and conditions.
(a) Except as contemplated by this Agreement, each party must not, and must not permit any of its officers, employees, agents, contractors or related companies to, use or disclose to any person any Confidential Information disclosed to it by the other party without its prior written consent.
(b) This clause 17 does not apply to:
(i) information which is generally available to the public (other than as a result of a breach of this Agreement or another obligation of confidence);
(ii) information required to be disclosed by any law; or
(iii) information disclosed by TES to its subcontractors, employees or agents for the purposes of performing the Services or its obligations under this Agreement.
(a) To the maximum extent permitted by applicable law, all express or implied representations and warranties not expressly stated in this Agreement or a Client Form are excluded.
(b) Nothing in this agreement is intended to limit the operation of the Australian Consumer Law contained in the Competition and Consumer Act 2010 (Cth) (ACL). Under the ACL, the Client may be entitled to certain remedies (like a refund, replacement or repair) if there is a failure with the goods or services provided.
(a) (Limitation of liability) To the maximum extent permitted by applicable law, the maximum aggregate liability of TES to the Client in respect of loss or damage sustained by the Client under or in connection with this Agreement is limited to the total Fees paid to TES by the Client as at the date of the first event giving rise to the relevant liability.
(b) (Indemnity) The Client agrees at all times to indemnify and hold harmless TES and its officers, employees, agents and contractors (“those indemnified”) from and against any loss (including reasonable legal costs) or liability incurred or suffered by any of those indemnified where such loss or liability was caused or contributed to by the Client or the Client’s officers’, employees’, agents’ or contractors’:
(i) breach of any term of this agreement; or
(ii) negligent, fraudulent or criminal act or omission.
(c) (Consequential loss) TES will not be liable for any incidental, special or consequential loss or damages, or damages for loss of data, business or business opportunity, goodwill, anticipated savings, profits or revenue arising under or in connection with this agreement or any goods or services provided by TES, except to the extent this liability cannot be excluded under the Competition and Consumer Act 2010 (Cth) or any other applicable law.
TES may subcontract any aspect of providing the Services and the Client hereby consents to such subcontracting.
TES may terminate this Agreement for convenience at any time by providing 1 month’s written notice to the Client.
Either party (Non-Defaulting Party) may terminate this Agreement immediately by written notice to the other party (Defaulting Party) if the Defaulting Party is in breach of this Agreement and either:
(a) fails to remedy such breach within 14 days of receiving notice from the Non-Defaulting Party requiring it to remedy such breach; or
(b) that breach is not capable of remedy.
(a) TES will refund any amounts paid by the Client for goods or services not provided as at the date of termination except for Custom Products in which case TES is allowed to retain all amounts paid by the Client;
(b) the Client must pay all amounts owed for goods or services already provided as at the date of termination;
(c) each party must return all property of other parties to those respective parties;
(d) each party must immediately return to each other party, or (if requested by that party) destroy, any documents in its possession or control containing Confidential Information of the other party; and
(e) no rights, liabilities or remedies of any party will be invalidated by the termination.
Any clause that by its nature would reasonably be expected to be performed after the termination or expiry of this Agreement will survive and be enforceable after such termination or expiry.
Until such time as the Products are paid for in full in cleared funds, this clause shall apply to the supply of Products.
The Client acknowledges and agrees that notwithstanding any other provision of this Agreement:
(a) the PPSA applies to any supply of Products by TES to the Client;
(b) by agreeing to and/or accepting or adopting this Agreement the Client grants to TES:
(i) a purchase money security interest in the Products (on the basis that the Products are sold on retention of title terms); and
(ii) a security interest over all present and after-acquired property of the Client (for purposes of this clause 22 "Client's Property"),
(iii) to secure TES’s interest in the Products and all moneys owing or payable by the Client under this Agreement and any other moneys payable by the Client to TES from time to time on any account whatsoever;
(c) if a purchase money security interest is not able to be claimed by TES in respect of the Products for any reason, TES will have a security interest in the Products;
(d) the Client agrees that TES’s security interest in Products and the Client's property covered by this Agreement may be registered on the PPSR and the Client agrees to do all things necessary and required by TES to effect registration of TES’s security interest on the PPSR in order to give TES’s security interest the best priority possible and anything else TES requests the Client to do in connection with the PPSA without delay;
(e) the Client warrants that all information provided by the Client to TES, including but not limited to the Client's details, including the entity, name, ACN or ABN and address set out in the Proposal is correct in all respects and must not change its name, address or other details set out in the Proposal without providing TES with at least 20 business days prior written notice;
(f) the Client unconditionally and irrevocably appoints TES as its attorney to do any of acts and matters set out in this clause 22 in the event that the Client fails, delays or declines to execute such documents or do such acts;
(g) the Client agrees that it will not grant a security interest or other encumbrance in the Products whether under the PPSA or any other law to a third party unless it has obtained the prior written consent of TES, which TES may refuse to provide or grant in its absolute and unfettered discretion. TES may request and the Client must provide any information that TES requires, acting reasonably, in order to fully consider whether to grant its consent;
(h) TES’s security interest in the Products, and the Client's Property extends to any proceeds in all present and after acquired property including without limitation book debts and accounts receivable arising from the selling or hiring of the Products, and/or the Client's Property by the Client;
(i) it has received value as at the date of first delivery of the Products and has not agreed to postpone the time for attachment of the security interest (as defined in the PPSA) granted to TES under this Agreement;
(j) the Products are located in Australia at the date of the supply of the Products and the Client warrants that the Products will remain located in Australia for the duration of the Agreement;
(k) neither TES or the Client will disclose any information to any interested person unless required to do so under the PPSA;
(l) the Client waives its right under the PPSA:
(i) to receive a copy of any verification statement, financing change statement, or any notice that TES intends to sell the Products and/or the Client's Property or to retain the Products and/or the Client's Property on enforcement of the security interest granted to TES under this Agreement or any other notice under the PPSA unless the notice is required to be given by the PPSA and cannot be contracted out of;
(ii) to object to a Proposal by TES to dispose of or purchase or retain the Products and/or the Client's Property in satisfaction of any obligation owed by the Client to TES;
(iii) to receive a statement of account following the sale of the Products and/or the Client's Property; or
(iv) to redeem the Products and/or the Client's Property;
(m) will not give (or allow any person to give) to TES a written demand requiring TES to register a financing change statement under the PPSA or enter into (or allow any other person to enter into) the PPS Register a financing change statement under the PPSA; and
(n) a default under any other security agreement under which it has granted a security interest to any other party in respect of the Products is deemed to be a breach of this Agreement.
(o) TES is not required to respond to a request made under Section 275 of the PPSA and that neither party will disclose information of the kind set out in Section 275(1) of the PPSA.
The parties acknowledge and agree that any supply of Products of any kind by TES to the Client which is not specifically set out in the Proposal but for which TES has or later issues a tax invoice or any other documentation to the Client is deemed to form part of the Agreement and is subject to the terms of the Agreement.
(a) The enforcement provisions contained in this Agreement are in addition to any rights available to TES under the PPSA and apply to the maximum extent permitted by law.
(b) Without limitation to clause 23.4(a)and any other provision of this Agreement sections 125, 129(2), 142 and 143 of the PPSA are contracted out of.
The Client irrevocably nominates, constitutes and appoints TES and/or its officers and/or its nominees severally to be the true and lawful attorneys of the Client on behalf of and in the name of the Client to do all things necessary and sign all such documents as may be necessary to deal with the Products in accordance with the enforcement provisions of this Agreement, the PPSA or otherwise, if the Client is in default of this Agreement.
A term used in this clause 22 is taken to have the meaning defined under the PPSA.
In this clause and any Client Form, the following terms have the following meanings in relation to Intellectual Property Rights:
(a) “Existing Material” means Material, other than New Material;
(b) “New Material” means Material that is created, written, developed or otherwise brought into existence during the term for the purposes of this Agreement; and
(c) “Material” means tangible and intangible information, documents, reports, software (including source and object code), inventions, Data and other materials in any media whatsoever.
(d) “Data” means technical data including measurements and/or information transmitted to our cloud software and captured by our instruments and/or algorithms or provided to us by you (whether relating to your equipment, plant, cabling, switchgear or otherwise) which is obtained or processed by us in connection with the Services.
(a) Except to the extent otherwise stated in a Client Form or in this clause 23.2:
(i) each party retains ownership of the Intellectual Property Rights in its Existing Material; and
(ii) nothing in this Agreement transfers ownership of, or assigns any Intellectual Property Rights in, either party’s Existing Material to the other party.
(b) The Client grants to TES (and its Personnel) a non-exclusive, royalty free, non-transferable, worldwide and irrevocable licence to use its Existing Material and Data to the extent reasonably required to perform any Services and to improve the Products and Services (including for the benefit of other customers).
(c) The Client warrants that:
(i) the Client has full authority and capacity to permit TES to collect, retain and use the Data and Existing Material in accordance with clause 23.2;
(ii) TES’s use of the Client’s Existing Material will not infringe the Intellectual Property Rights of any third party and the Client will indemnify TES from and against all losses, claims, expenses, damages and liabilities (including any taxes, fees or costs) which arise out of such infringement.
Unless otherwise stated in a Client Form, Intellectual Property Rights in New Material will be solely and exclusively owned by TES.
(a) TES grants to the Client a non-exclusive, royalty free, non-transferable and revocable licence to use its Existing Material and any New Material to the extent reasonably required for the Client to enjoy the benefit of the Services.
(b) Unless otherwise agreed in writing by TES or in this clause 23, the Client will not acquire Intellectual Property Rights in TES’s intellectual property under this Agreement or as part of receiving the Services.
(a) A party claiming that a dispute has arisen under or in connection with this agreement must not commence court proceedings arising from or relating to the dispute, other than a claim for urgent interlocutory relief, unless that party has complied with the requirements of this clause.
(b) A party that requires resolution of a dispute which arises under or in connection with this agreement must give the other party or parties to the dispute written notice containing reasonable details of the dispute and requiring its resolution under this clause.
(c) Once the dispute notice has been given, each party to the dispute must then use its best efforts to resolve the dispute in good faith. If the dispute is not resolved within a period of 14 days (or such other period as agreed by the parties in writing) after the date of the notice, any party to the dispute may take legal proceedings to resolve the dispute.
(a) If a party (Affected Party) becomes unable, wholly or in part, to carry out an obligation under this agreement (other than an obligation to pay money) due to a Force Majeure Event, the Affected Party must give to the other party prompt written notice of:
(i) reasonable details of the Force Majeure Event; and
(ii) so far as is known, the probable extent to which the Affected Party will be unable to perform or be delayed in performing its obligation.
(b) Subject to compliance with clause 25(a) the relevant obligation will be suspended during the Force Majeure Event to the extent that it is affected by the Force Majeure Event.
(c) The Affected Party must use its best endeavours to overcome or remove the Force Majeure Event as quickly as possible.
(d) For the purposes of this agreement, a ‘Force Majeure Event’ means any:
(i) act of God, lightning strike, meteor strike, earthquake, storm, flood, landslide, explosion or fire;
(ii) strikes or other industrial action outside of the control of the Affected Party;
(iii) war, terrorism, sabotage, blockade, revolution, riot, insurrection, civil commotion, epidemic, pandemic; or
(iv) any decision of a government authority in relation to COVID-19, or any threat of COVID-19 beyond the reasonable control of the Affected Party, to the extent it affects the Affected Party’s ability to perform its obligations.
(a) A notice or other communication to a party under this agreement must be:
(i) in writing and in English; and
(ii) delivered via email to the other party, to the email address specified in this agreement, or if no email address is specified in this agreement, then the email address most regularly used by the parties to correspond regarding the subject matter of this agreement as at the date of this agreement (Email Address). The parties may update their Email Address by notice to the other party.
(b) Unless the party sending the notice knows or reasonably ought to suspect that an email was not delivered to the other party’s Email Address, notice will be taken to be given:
(i) 24 hours after the email was sent, unless that falls on a Saturday, Sunday or a public holiday in the state or territory whose laws govern this Agreement, in which case the notice will be taken to be given on the next occurring business day in that state or territory; or
(ii) when replied to by the other party, whichever is earlier.
This Agreement is governed by the law applying in New South Wales, Australia.
Each party irrevocably submits to the exclusive jurisdiction of the courts of New South Wales, Australia and courts of appeal from them in respect of any proceedings arising out of or in connection with this Agreement. Each party irrevocably waives any objection to the venue of any legal process on the basis that the process has been brought in an inconvenient forum.
A party cannot assign, novate or otherwise transfer any of its rights or obligations under this Agreement without the prior consent of each other party (such consent not to be unreasonably withheld).
(a) Nothing contained in this Agreement creates an agency, partnership, joint venture or employment relationship between TES and the Client or any of their respective employees, agents or contractors.
(b) Neither party nor any person acting on its behalf may hold itself out as being entitled to contract or accept payment in the name of or on account of the other party.
This Agreement may only be amended by a document signed by each party.
No party to this Agreement may rely on the words or conduct of any other party as a waiver of any right unless the waiver is in writing and signed by the party granting the waiver.
Each party must promptly do all further acts and execute and deliver all further documents required by law or reasonably requested by another party to give effect to this Agreement.
This Agreement embodies the entire agreement between the parties and supersedes any prior negotiation, conduct, arrangement, understanding or agreement, express or implied, in relation to the subject matter of this Agreement.