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These Terms and Conditions apply access to the Web App and to any Services Skand provides as accepted by the Customer under a Quotation.
1 Provision of Services
1.1 In consideration of the Customer paying Skand the Fees, Skand agrees to provide the Services during the Term.
1.2 The particulars of the Services will be set out in a separate Quotation. The Customer must agree to the Quotation prior to Skand commencing providing the Services. An example Quotation can be found at [#insert details of where blank Quotation will be kept, e.g. could be Annexure 1 or a separate web page].
1.3 Skand agrees to supply the Services:
1.3.1 with reasonable care skill and attention; and
1.3.2 otherwise in a manner that Skand sees fit having proper regard to the Customer’s views, suggestions and requests.
1.4 If the Customer requests and Skand agrees in writing to undertake work beyond the Services, such additional work will form part of the Services and be charged in addition to the Fees set out in the Quotation.
1.5 Skand offers a range of Service Levels which come with different features. A full copy of the Service Levels and associated feature list can be accessed at [#insert details of where feature list will be available for potential customers].
2 Customer request for Services
2.1 Skand operates a Web App which the Customer has access to during the Term for the purpose of ordering Services, uploading Customer Data and retrieving the Contract Materials. The Web App can also be used by a Customer to share data to third parties (if permitted by the Customer’s Service Level).
2.2 The Customer agrees that it must use the Web App for these purposes.
2.3 Skand reserves the right to conduct maintenance on the Web App. Skand will endeavour to provide the Customer with advance notice of scheduled maintenance however the Customer acknowledges that in some circumstances this may not be possible. The Customer acknowledges that Skand is not liable for any claims the Customer may have for failure to access the Web App during periods where the Web App is down for maintenance.
3 Customer Data
3.1 The Customer acknowledges that Skand may provide instructions regarding the upload and content of Customer Data, including for example, a requirement that images be labelled in a certain manner.
3.2 The Customer must provide the Customer Data to Skand using the Web App in accordance with any instructions given pursuant to clause 3.1prior to Skand commencing provision of the Services.
3.3 The Customer agrees that it is solely responsible for the content of the Customer Data and entering it into the Web App. The Customer will collect and maintain all personal information contained in the Customer Data in compliance with applicable data privacy and protection laws.
3.4 Skand reserves the right to reject any Customer Data uploaded to the Web App if Skand assesses that the Customer Data is not appropriate or adequate for the purposes of performing the Services. Should Skand reject Customer Data, Skand will notify the Customer by email. The Customer agrees that it must act in accordance with any instructions given by Skand in respect of Customer Data being re-provided or work required to remedy the Customer Data before Skand can continue providing the Services. Skand is not liable for any delay in performing the Services caused by Skand rejecting Customer data in accordance with this clause3.4or the Customer failing to comply with Skand’s instructions regarding rejected Customer Data.
3.5 Skand is not responsible for or at all involved in the collection of Customer Data.
3.6 Skand will use its reasonable endeavours to ensure that Customer Data is protected (physically, electronically and otherwise) in accordance with industry best practice and to a level no less secure than those measures taken by Skand to ensure the security of its own data and confidential information.
3.7 The Customer acknowledges that in providing services, Skand will process and analyse the Customer Data to provide the Contract Material and in doing so will also use the knowledge and improve the Services and its Web App. The Customer Data remains owned by the Customer but you agree that all new learnings, improvements and the Web App and Services will be owned by Skand as Skand Material.
4 Invoicing and Payment
4.1 The Customer shall pay the Fees specified in the Quotation in consideration for the provision of the Services. The Fees payable depend on the Level of Service the Customer has engaged Skand to provide.
4.2 The Customer may pay the applicable Fees to Skand within [#30 days] of the date of a correctly rendered invoice in accordance with the requirements of clause 4.7.
4.3 The Customer acknowledges that any of the Customer’s rights in relation to Skand Material (clause 6.2) and Contract Material (clause 6.3) is dependent upon the Customer making payment under this clause.
4.4 Skand may issue an invoice at any time unless otherwise specified in this Agreement.
4.5 Skand may require the Customer to pay under this Agreement any additional fees, charges or expenses (including without limitation, document reproduction, courier, telecommunications, travel or accommodation fees, charges or expenses) which are not expressly included in the Fees for the supply of the Services.
4.6 Subject to clause 10, all taxes, duties and government charges imposed or levied in Australia or overseas in connection with this Agreement (if any) will be the Customer’s responsibility.
4.7 An invoice will be correctly rendered by Skand where the invoice:
4.7.1 contains sufficient details to enable the parties to identify the Services to which the invoice relates;
4.7.2 is address to the address of the Customer contained in the Quotation; and
4.7.3 is a valid tax invoice for the purposes of the GST Act.
4.7.4 otherwise in a manner that Skand sees fit having proper regard to the Customer’s views, suggestions and requests.
4.8 Without limiting Skand’s rights under clause 8, if the Customer fails to pay an invoice in accordance with this clause 4, Skand may elect to do one or both of the following:
4.8.1 Charge interest on all unpaid amounts at the Interest Rate computed on a daily basis without any further notice to the Customer; or
4.8.2 Suspend the provision of Services. Upon payment and Service resumption, Skand will be entitled to a time extension to perform this Agreement for the period of suspension.
5.1 Each party agrees not to disclose to any person other than the party’s personnel or advisers on a need-to-know basis any Confidential Information of the other party relating to this Agreement without prior approval in writing from the other party.
5.2 Despite clause 5.1, the Customer acknowledges that Skand may disclose information relevant to this Agreement, or this Agreement itself, to any person:
5.2.1 to the extent required by law or by a lawful requirement of any government or government body, authority or agency; or
5.2.2 if required in connection with legal proceedings.
6 Intellectual Property
6.1 Customer Data
6.1.1 Ownership of all Customer Data remains vested at all times in the Customer.
6.1.2 Upon the termination or expiry of this Agreement, Skand agrees to return all Customer Data remaining in its possession to the Customer within 30 days of written request.
6.1.3 The Customer grants to Skand a licence to use all Intellectual Property Rights in the Customer Data for the purposes of this Agreement. The Customer acknowledges and agrees that the rights conferred by the licence granted by the Customer under this clause6.1.3extend to a right for Skand to provide the Customer Data to third parties which Skand has an agreement with for the purposes of providing the Services, creating Contract Material or otherwise complying with its obligations under this Agreement.
6.2 Skand Material
6.2.1 Ownership of all Skand Material remains vested at all times in Skand.
6.2.2 Upon the termination or expiry of this Agreement, the Customer must return all Skand Material remaining in its possession to Skand within 30 days of written request.
6.2.3 If permitted by the Customer’s Level of Service, upon payment by the Customer in accordance with clause 4), Skand grants to the Customer a non-exclusive, non-transferrable, revocable licence (including a right of sub-licence) to use the Skand Material but only to the extent incorporated into the Contract Material.
6.3 Contract Material
6.3.1 Any Intellectual Property rights and title to, or in relation to, this Agreement, will vest, upon creation, in Skand.
6.3.2 If permitted by the Customer’s Level of Service, upon payment by the Customer in accordance with clause 4), Skand grants to the Customer a non-exclusive, non-transferrable, revocable licence (including a right of sub-licence) to use the Contract Material.
7 Use of Contract Materials
7.1.1 The Customer should carefully assess the suitability of the Contract Materials for its purposes. It is the responsibility of the Customer to review the Contract Materials and determine whether any issues raised warrant further consideration.
7.1.2 The use of the Contract Materials will be at the Customer’s own risk. Skand will not be responsible for the use to which the Contract Materials are put by the Customer or any third party.
7.1.3 The Customer acknowledges that Skand is not a registered building inspector and the Contract Materials produced as part of the Services provide an informative report only and are not a substitute for engaging a registered building inspector.
8.1 Without limiting any other rights or remedies of any party arising out of or in connection with this Agreement, either party may terminate this Agreement in whole or in part immediately be giving written notice to the other party where the other party:
8.1.1 breaches a provision of this Agreement which is not capable of being remedied; or
8.1.2 fails to remedy a material breach of a provision of this Agreement which is capable of being remedied within thirty (30) days after receiving written notice from the first party to do so.
9 Dispute resolution
9.1 Before reporting to external dispute resolution mechanisms, the parties must attempt to settle by negotiation any dispute in relation to this Agreement including by referring to matter to personnel who may have authority to intervene and direct some form of resolution.
9.2 If a dispute is not settled by the parties within 20 Business Days of one party first sending to the other party written notice that they are in dispute, the parties must refer the dispute to mediation prior to commencing court proceedings.
9.3 Notwithstanding the existence of a dispute, each party must continue to perform its obligations under this Agreement.
10.1 All Fees are exclusive of GST unless otherwise specified to the contrary.
10.2 Without limiting clause 10.1, if a party makes a supply under or in connection with this Agreement in respect of which GST is payable then the other party must pay at the same time to the first mentioned party an additional amount equal to the GST payable on the supply.
10.3 If a party must reimburse or indemnify the other party for a loss, cost or expense under or in connection with this Agreement, the amount to be reimburse or indemnified is first reduced by any input tax credit the other party is entitled to for the loss, cost or expense, and then increased in accordance with clause 10.2.
10.4 A party need not make a payment for a taxable supply made under or in connection with this Agreement until it receives a tax invoice for the supply to which the penalty relates.
11.1 To the extent permitted by law, Skand excludes all warranties, conditions or terms, other than those expressly set out in these terms. Nothing in this clause has the effect of excluding, restricting or modifying the application of any legislation (including the Competition and Consumer Act 2010 (Cth)).
11.2 To the extent Skand is not entitled to exclude a warranty, condition or term then its liability for breach is limited to either the resupply of the Services or payment for the reasonable cost of having the Services resupplied.
11.3 Skand’s total liability to the Customer for any loss or damage (including indirect and consequential loss or damage), caused by, resulting from, or in relation to the Services, including whether arising from breach of contract, negligence or any other tort, in equity or otherwise, and whether Skand was advised of the possibility of such loss or damage, is limited (to the extent permitted by law) to the Fees paid for the Services.
11.4 To the extent permitted by law, Skand’s liability to the Customer is limited to that part of the loss or damage (excluding interest and costs) suffered by the Customer, which is ascribed to Skand under proportionate liability legislation.
12.1 Any notice or other communication required or authorised under this Agreement, to be given to a person must be in writing, signed and may be:
12.1.1 given personally to the person; or
12.1.2 sent to the person’s physical address or email address set out in the Quotation.
12.2 A notice or other communication is taken to be received by the recipient:
12.2.1 if given personally, at that time;
12.2.2 if sent by prepaid post within in Australia to an Australian address, 6 Business Days after posting;
12.2.3 if sent by email, at the time of recipient as specified in section 13A of the Electronic Transactions (Victoria) Act 2000,
In all cases, a notice or communication received after 5.00pm in the place of receipt or on a day that is not a Business Day is taken to have been received by the recipient at 9.00am on the next Business Day.
13.1 This Agreement is subject to any additional provisions in the Quotation. If there is an inconsistency between an additional provision and another provision of this Agreement, the additional provision prevails.
13.2 This Agreement does not create a relationship of employer and employee, principal and agent, or partnership between the parties, nor does it create any relationship between the parties’ personnel.
13.3 If a conflict exists between this Agreement and Skand’s proposal, then this Agreement will prevail. All prior representations, warranties, arrangements, understandings and agreements concerning the subject matter of this agreement are superseded.
13.4 The Customer must not assign its rights or obligations under this Agreement without obtaining prior written consent of the Skand.
13.5 The Customer must not sub-contract its obligations under this Agreement. Skand may sub-contract or otherwise delegate any of its rights or obligations under this Agreement without the prior written approval of the Customer. However, Skand remains responsible for the performance of the Services.
13.6 Clauses 5, 6and 7of this Agreement survive the termination or expiry of this Agreement.
13.7 Skand may update these terms and conditions at any time. Skand will provide the Customer with 14 days’ notice of any changes to these Terms and Conditions.
13.8 This agreement is governed by and interpreted in accordance with the laws of Victoria.
14.1 “Additional Provisions” means any additional rights or obligations on one or more parties set out in the Quotation.
14.2 “Agreement” means this Agreement for the provision of Services and includes, the General Terms and Conditions, Quotation, , schedules and any annexures to this Agreement.
14.3 “Business Day” means a day other than Saturday, Sunday or a public holiday in Melbourne, Victoria.
14.4 “Confidential Information” means information that:
14.4.1 is by its nature confidential;
14.4.2 is designated by either party as confidential; or
14.4.3 s party knows or ought to know if confidential,
But does not include information which:
14.4.4 is or becomes public knowledge other than by breach of this Agreement or by other unlawful means;
14.4.5 is in the possession of Skand without restriction in relation disclosure before the date of receipt from the Customer; or
14.4.6 has been independently developed or acquired by Skand.
14.5 “Contract Materials” means all materials, documents, equipment, software, goods, information and data stored by any means:
14.5.1 brought into existence for the purposes of performing the Services; or
14.5.2 incorporated in, supplied or required to be supplied to the Customer as part of the Services.
14.6 “Customer” means the person identified as the Customer in the Quotation in includes that person’s representatives, persons acting in their capacity as trustee for the person and affiliates of the person.
14.7 “Customer Data” means all information, data and materials provided by the Customer to Skand in connection with this Agreement, and includes all Intellectual Property in the information, data and materials.
14.8 “Fees” means the fees and charges payable by the Customer in consideration for the Services set out in the Quotation.
14.9 “General Terms and Conditions” means these terms and conditions which govern the provision of the Services under an accepted Quotation.
14.10 “GST” has the meaning given to that expression in the GST Law.
14.11 “GST Act” means A New Tax System (Goods and Services Tax) Act 1999 (Cth).
14.12 “GST Law” means the GST Act and any associated legislation including, without limitation, delegated legislation.
14.13 “Intellectual Property” means any copyright and neighbouring rights, all rights in relation to inventions (including patent rights), plant varieties, registered and unregistered trade marks (including service marks), registered designs, business and domain names, user accounts with third party service providers and Confidential Information form intellectual activity in the industrial, scientific, literary or artistic fields.
14.14 “Interest Rate” means an interest rate of [8% per annum].
14.15 “Level of Service” is the level which corresponds to the Services to be provided as set out in the Quotation.
14.16 “Quotation” means the document the Customer may enter into with Skand that sets out the Services to be provided.
14.17 “Services” means the services described in the Quotation.
14.18 “Skand” means Skand Pty Ltd ACN 144 942 290 / ABN 70 144 942 290.
14.19 “Skand Materials” means any materials, documents, equipment, software, goods, information and data stored by any and used by Skand in performing its obligations under this Agreement including to develop the Contract Materials, and includes all related Intellectual Property.
14.20 “Term” means the term of the Agreement as set out in the Quotation.
14.21 “Web App” means the web-based platform or page operated by Skand which the Customer must use to upload Customer Data and retrieve Contract Materials.