STANDARD SERVICE TERMS AND CONDITIONS

1.1. Upon issue of a Services Agreement Form SSA offers to provide the Client with the Services pursuant to these Terms.
1.2. Client may accept SSA’s offer to provide the Services described in the Services Agreement Form by signing and returning the Services Agreement Form to SSA, or otherwise indicating its acceptance to SSA including by providing instructions and/or requesting commencement of Services by email/ or by purchase order/ or by providing CAD drawings to facilitate the start of the work.
1.3. In consideration of the promise by SSA to provide the Services, Client agrees to pay SSA the Project Fee and any other charge imposed by SSA pursuant to the Terms.
1.4. SSA does not assume any obligation to Client, and Client does not have any rights or remedies as against SSA, in connection with any information or advice SSA may provide to Client unless and until a Services Agreement Form is received by SSA.

2. PROVISION OF SERVICES

2.1. Subject to this clause, SSA will provide the Services to Client:
2.1.1. on and from the Project Commencement Date;
2.1.2. by the Project Delivery Date; and
2.1.3. during the Project Schedule Period, in the manner described in the Services Agreement Form or otherwise as it reasonably determines.
2.2. SSA may provide the Services:
2.2.1. through such of its Personnel as it determines from time to time; and
2.2.2. in accordance with the Project Schedule.
2.3. At any time during the provision of the Services,
SSA may:
2.3.1. make reasonable requests of Client for meetings via any means for the purposes of discussing the Services or any related matter, and Client must use best endeavours to accommodate such requests; and
2.3.2. request Client to review, comment on, and or approve the Services or any part thereof, and Client must use its best endeavours to accommodate such requests.
2.4. Client hereby acknowledges and agrees that failure to comply with a request by SSA pursuant to this clause may result in a delay to the provision of the Services for which SSA will not be liable.
2.5. SSA will not be required to provide the Services to Client in circumstances where:
2.5.1. its access is hindered, impeded, or prohibited;
2.5.2. provision of the Services would, in the reasonable view of SSA, be hazardous; or
2.5.3. provision of the Services would otherwise present an unacceptable degree of risk to:
a) SSA or its Personnel;
b) Client or its Personnel; or
c) any other person.
2.6. Any services requested by Client, which is considered by SSA to be additional to the Services, will be performed by SSA at its discretion and will be charged to Client in addition to the Project Fee at the Hourly Rate.

3. PROVISION OF INFORMATION AND GRANT OF LICENCE

3.1. Client must provide to SSA such of its Project Data and intellectual property as may be necessary to enable SSA to provide the Services.
3.2. Client hereby grants to SSA a worldwide, royalty-free, non-exclusive, irrevocable licence to use, and to sub-licence the use of, any Project Data and/or intellectual property owned by Client and required by SSA to provide the Services, and Client warrants to SSA that:
3.2.1. the Project Data (information, advice or material) is materially correct and free from error and omission; and
3.2.2. it has the right and authority to grant this licence.
3.3. Upon the expiration or termination of this Agreement the licence pursuant to 3.2 will be revoked.
3.4. For the avoidance of doubt, except to the extent of the licence granted, SSA will acquire no property rights in or to the Project Data and/or intellectual property provided by Client pursuant to this clause.
3.5 The client warrants that SSA will be able to rely on all information, advice or other material provided by or on behalf of the client with out any obligation to verify its accuracy or completeness.

4. FEES AND PAYMENT

4.1. SSA will issue to Client an Invoice in respect of the Project Fee, Cost Recoveries and any other charges imposed by SSA in accordance with the Agreement, or any part thereof, each month during the Project Schedule Period or at such other times/intervals as may be agreed by SSA and Client.
4.2. Client must pay SSA the amount that is due and payable pursuant to an Invoice it issues by the Due Date.
4.3. Client must not withhold, make deductions from, or set-off, payment of any money owed to SSA for any reason.
4.4. In addition to other amounts, SSA may charge Client:
4.4.1. a surcharge of up to 2% of any amount paid by Client to SSA by credit card;
4.4.2. interest on any amount owed by Client and which is not received by SSA by the Due Date at a rate of 12% per annum, which interest shall be calculated daily; and
4.4.3. an administrative charge in the amount of AUD$50 each month in respect of each Invoice that remains unpaid, in whole or in part, by the Due Date
4.5. In the event that SSA is required to take any recovery action against Client in respect of any amount owing, and which is not received by SSA on or before the Due Date, SSA may charge all costs incurred by SSA in connection with such recovery action.
4.6. Any interest and charges imposed by SSA pursuant to the terms of the Agreement will become a debt that is due and payable by Client contemporaneously with the amount for which the Invoice is issued.
4.7. SSA retains all legal and equitable rights in the Services and any product thereof until such time as Client pays, and SSA receives, all amounts that are due and payable by Client under the Agreement.
4.8. The rights of SSA arising pursuant to this clause 4 are in addition to any other of its rights and remedies to which SSA may be entitled.

5. GOODS AND SERVICES TAX

5.1. All amounts expressed in the Agreement are exclusive of GST unless otherwise stated.
5.2. SSA will charge Client, in addition to the Project Fee, Cost Recoveries and any other charges it imposes, and Client agrees to pay to SSA, an amount equal to any GST that is payable by SSA in connection with provision of the Services or otherwise in consequence of the Agreement.

6. WARRANTIES AND LIMITATION OF LIABILITY

6.1. SSA hereby excludes all express and implied conditions and warranties in relation to the Services except those expressed in these Terms or which cannot be excluded by law.
6.2. To the extent permitted by law, SSA and its Personnel accept no liability:
6.2.1. arising out of the performance or non-performance of the Services or otherwise by virtue of this Agreement, whether arising at law, in equity or by virtue of any statute; or
6.2.2. to Client or any other person for any liability or claim of any kind whatsoever arising directly or indirectly (whether under statute, contract, tort, negligence or otherwise) in relation to any indirect or consequential loss (including but not limited to any loss of actual or anticipated profits, revenue, savings, production, business, opportunity, access to markets, goodwill, reputation, publicity, or use) or any other remote, abnormal or unforeseeable loss or any similar loss incurred, whether or not in the reasonable contemplation of the parties.
6.3. Subject always to clause 6.2, to the extent that SSA has liability arising out of the performance or non-performance of the Services or otherwise by virtue of this Agreement, however determined, it is limited to the lesser of:
6.3.1. the cost of supplying the Services again;
6.3.2. the payment of the cost of having the Services supplied again; or
6.3.3. the amount received by SSA from the Client as payment under this Agreement.
6.4. Nothing in this clause 6 shall be read or applied so as to purport to exclude, restrict or modify, or have the effect of excluding, restricting or modifying, the application of all or any of the provisions of the Competition and Consumer Act 2010 (Cth) or any relevant State Act or Territorial Ordinance which by law cannot be excluded, restricted or modified.

7. FORCE MAJEURE

7.1. Except in relation to any payment obligation pursuant to clause 4, if performance of any obligation arising under the Agreement is prevented or delayed, wholly or in part, by reason of an act of nature, or the consequence thereof including, but not limited to, fire, flood, typhoon, earthquake, tornado, or by reason of riots, wars, hostilities, government restrictions, trade embargoes, strikes, lockouts, labour disputes, boycotting of goods, ship storage, chemical or nuclear spill, manufacturer’s bankruptcy, delays or damage in transportation or other causes beyond their reasonable control, which continues for not less than 30 days, SSA or Client (as the affected party) may:
7.1.1. perform the Agreement (or the unperformed part thereof) within a reasonable time from the removal of the cause preventing or delaying performance; or
7.1.2. rescind unconditionally, and without liability, the Agreement (or the unperformed part thereof).

8. INTELLECTUAL PROPERTY

8.1. Unless otherwise indicated by SSA in the Services
Agreement Form but subject always to clause 8.2, any intellectual property which is created by SSA for the Client in the course of provision of the Services will be owned by Client immediately upon the payment of all amounts owing by Client to SSA pursuant to this Agreement.
8.2. Clause 8.1 does not apply to Background IP no right, title or interest in which passes to the Client except to the extent provided in clause 8.3.
8.3. To the extent of SSA’s capacity to do so, SSA hereby grants to Client a licence to use the Background IP in connection with the Services to the extent necessary for Client to use them or any contemplated product thereof.
8.4 When using drawings, design, computations and the like delivered by SSA as part of the services, the client must comply with the law including, without limitations, copyright laws.

9. TERMINATION

9.1. Except as otherwise agreed in writing, neither party has a right to terminate the Agreement otherwise than for due cause pursuant to this clause.
9.2. A party may terminate the Agreement immediately by notice in writing upon the occurrence of a Terminating Event that happens in relation to the other party.
9.3. It is a Terminating Event if:
9.3.1. a party commits a breach of an essential term of the Agreement and that breach:
a) cannot be remedied; or
b) can be remedied, but is not remedied by the defaulting party within 30 days after the other party gives the defaulting party notice of the breach;
9.3.2. a party stops or suspends, or threatens to stop or suspend, payment of all its debts generally, is or becomes unable to pay its debts as and when they fall due for payment, or becomes unable to pay its debts within the meaning of the Corporations Act 2001 (Cth);
9.3.3. a party enters into, or resolves to enter into, an arrangement, composition or compromise with, or assignment for the benefit of, its creditors or any class of them;
9.3.4. an application or order is made, proceedings are commenced, a resolution is passed or proposed in a notice of meeting, or other steps are taken against or in respect of a party for its winding up, deregistration or dissolution;
9.3.5. a receiver, receiver and manager, administrator, trustee or similar official is appointed over the assets or undertakings of a party, an application or order is made for the winding up or dissolution of a party, or a resolution is passed or any steps are taken to pass a resolution for the winding up;
9.3.6. dissolution of a party, except for the purpose of amalgamation or other reconstruction which has the other party’s consent; or
9.3.7. there is a change in the control of the Client or it otherwise closes or disposes of
all or a substantial part of its business, other than where a change of control results in a related body corporate (as defined in the Corporations Act 2001 (Cth)) obtaining control of the Client or ownership of its business.
9.4. In the event of termination of the Agreement by Client pursuant to this clause 9, Client agrees to pay SSA for all work it has undertaken in connection with the Services as at the date of termination, as well as its Cost Recoveries and any other charges SSA is entitled to impose determined to the date of termination.
9.5. In the event of termination of this Agreement by SSA pursuant to this clause 9, Client agrees to pay the Project Fee, Cost Recoveries and any other charges SSA is entitled to impose to the extent that the Project Outcome, or any part thereof, has been delivered by SSA as it reasonably determines.

10. MISCELLANEOUS

10.1. Client acknowledges and agrees that:
10.1.1. the Agreement is a Security Agreement for the purposes of the PPSA; and
10.1.2. SSA may serve a claim under a Security of Payment Law by email or any other means permitted by such law to the Client.
10.2. A waiver of, or failure by SSA to enforce, a right arising under the Agreement does not affect any other of its rights whether arising under the Agreement or otherwise.
10.3. If any clause of the Agreement is invalid or unenforceable in any jurisdiction it is to be read down for the purposes of that jurisdiction so as to enable it to be valid and enforceable and otherwise, and to the extent of any invalidity, shall be severed without effecting, to the extent possible, the validity and enforceability of the remaining clauses of the Agreement.
10.4. The Agreement contains the entire Agreement between SSA and Client with respect to its subject matter and supersedes all prior communications, arrangements, conduct and/or agreements.
10.5. The Agreement shall be governed by, and construed in accordance with, the laws for the time being in force in the State of Victoria and the parties submit to the non-exclusive jurisdiction of the courts of that State and courts of appeal therefrom.
10.6. Unless otherwise stated in the Agreement, any clause of the Agreement which expressly, or by implication from its nature, is intended to continue, will survive the expiration or termination of the Agreement.
10.7. The Agreement may be varied at any time by agreement in writing signed by SSA and Client.
10.8. SSA reserves all its rights to the extent that they are not reserved by the Terms.

11. INSURANCE

11.1. Professional indemnity and Public Liability insurance as required by the law will be kept by SSA

12. DISPUTE RESOLUTION

12.1 If a difference or dispute between the parties arises in connection with a Contract and/or Services, then either party can provide the other party with written notice of dispute.
12.2 If a notice of dispute has been issued, then representatives of the parties with the authority to agree will meet within 10 Business Days to try and resolve the dispute.
12.3 If the dispute has not been resolved within 20 Business Days of the notice of dispute, then that dispute can be referred by either party to, and finally resolved by, arbitration administered by the Australian Disputes Centre (“ADC”).
12.4 The arbitration shall be conducted in Melbourne in accordance with the ADC Rules for Domestic Arbitration operating at the time the dispute if referred to ADC (“Rules”) The terms of the Rules are hereby deemed incorporated into these Conditions.
12.5 Unless otherwise agreed in writing, each party shall bear its own costs and pay for half of all fees in relation to the arbitration, with the determination of the arbitrator being binding on both parties.
12.6 Nothing herein shall prejudice the right of a party to institute proceedings to enforce payment due under a Contract or to seek injunctive or urgent declaratory relief.

13. GENERAL WARRANTIES

13.1 If the Client is a consumer under the Australian Consumer Law(ACL), the Client also has extensive rights under the ACL including consumer guarantees and remedies. Nothing in these Conditions limits those rights and remedies in any way. Except as required by law, all warranties beyond those expressly given in these Conditions, whether expressed or implied and whether statutory or otherwise, with regard to the Services are excluded.

14. INTERPRETATION

14.1. In the Agreement, unless the context otherwise requires:
Agreement means the agreement between SSA and Client pursuant to these Terms and relating to the provision of the Services and includes the Services Agreement Form;
Appropriate Dispute Resolution has the meaning defined in the Civil Procedure Act 2010 (Vic) which, for the avoidance of doubt, shall apply as if a civil proceeding, for the purposes of that Act, were on foot;
Background IP means third party intellectual property and/or that which is either owned by SSA as at the date of this Agreement or which is created by SSA on or after that date otherwise than in the course of performance of the Services, but which is in any event incorporated in the Services or otherwise used by SSA to deliver the Services;
Client means the entity named as such in the Services Agreement Form;
Cost Recoveries means expenses reasonably incurred by SSA in providing the Services and may include accommodation, meal and travel expenses, and which are described in the Services Agreement Form;
Daily Rate means the rate(s) stated as such in the Services Agreement Form or such other rate
as SSA may advise to Client in writing (by any means including email) prior to the provision of the Services to which the rate applies;
Due Date in respect of any Invoice, means 30 days from the date of that Invoice.

GST has the meaning defined in the GST Act;
GST Act means A New Tax System (Goods and Services Tax) Act 1999 (Cth);
Invoice means a tax invoice as defined in the GST Act (or other form of invoice as permitted by law);
Personnel means any employee, contractor, agent, partner, director or officer;
Project Commencement Date means the date stated as such in the Services Agreement Form;
Project Data means such data of the Client as SSA many reasonably require to provide the Services including but not limited to technical and other information and know how concerning or relating to Client’s business systems or processes, and as may be more particularly described in the Services Agreement Form;
PPSA means the Personal Property Securities Act 2009 (Cth);
Project Delivery Date means the date described as such in the Services Agreement Form or such other date as may be agreed;
Project Fee means the amount described in, or calculated in accordance with, the Services
Agreement Form;
Project Outcome means the pre-determined outcome(s) associated with provision of the Services as may be described in the Services Agreement Form;
Project Schedule means the plan developed by SSA which takes account of the Project
Commencement Date, modules and/or phases during which the Services are expected to be provided, and the Project Delivery Date;
Project Schedule Period means from the Project Commencement Date through until the Project Delivery Date and such other periods as may be agreed;
Security of Payment Law means the Building and Construction Industry Security of Payment Act 2002 (Vic) or corresponding law of any other state and territory of Australia;
Services means the [engineering services] as described in the Services Agreement Form; Services Agreement Form means the form prepared by SSA which sets out, among other things, the Services, Project Fee, Project Commencement and Delivery Dates, and other information relating to or concerning the Services;
SSA means Simple Structures Australia Pty Ltd ABN 50 682 920 743 and/or any one or more of its associated entities as it may determine;
Terminating Event means an event specified in clause 9.3 of the Agreement; and Terms means these terms and conditions as amended by SSA from time to time.
14.2. In these Terms:
14.2.1. the headings do not affect interpretation;
14.2.2. the singular includes the plural and vice versa, and a gender includes other genders;
14.2.3. a reference to a document or instrument includes the document or instrument as novated, altered, supplemented or replaced from time to time;
14.2.4. a reference to a party in a document includes the party’s executors, administrators, heirs, successors in title, permitted assigns and substitutes;
14.2.5. a reference to a person includes a natural person, body corporate, partnership, trust, association or any governmental, administrative or judicial body, tribunal, department, commission, authority, agency, minister, corporation or instrumentality or any other entity;
14.2.6. a reference to a statute, ordinance, code or other law includes regulations, rules and other instruments under the statute, ordinance, code or other law and any consolidations, amendments, re-enactments or replacements;
14.2.7. the meaning of general words is not limited by specific examples introduced by
“including”, “for example” or similar expressions;
14.2.8. any agreement, representation, warranty or indemnity by two or more parties binds those parties jointly and severally;
14.2.9. if a day on or by which an obligation must be performed or an event must occur is not a business day, the obligation must be performed or the event must occur next business day.