Terms of Engagement - Nuance
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Terms of Engagement.

1. Interpretation

In these Terms –

(a) ‘Agreement’ means these Terms and the Scope of Work including any relevant Estimate plus any other annexures of, or schedules attached to, the Scope of Work;

(b) ‘Client’ means the person or organisation named on the Cover Letter for whom the Supplier has agreed to provide the Services in accordance with these Terms;

(c) ‘Client’s Materials’ means any Materials and any data or other information provided by the Client relating to the Services;

(d) ‘Confidential Information’ means the following information obtained by either party as a result of the Supplier’s engagement by the Client:

1. Personal information as defined in the Privacy Act 1988 (Cth)

2. Information which is marked “Confidential” or which is described or treated by the other party as confidential, or which is disclosed in circumstances implying confidentiality;

3. The terms upon which a party contracts with employees, contractors, clients and suppliers;

4. Business plans and forecasts;

5. The terms of this Agreement; and

6. Any other information of a business sensitive nature.

(e) ‘Estimate’ means the estimate and Scope of Work provided by the Supplier in relation to each project or job for the Client, which, upon sign-off by the Client, will immediately be incorporated into the Agreement;

(f) “Materials” includes, in addition to a document in writing, any map, plan, graph, drawing or photograph, any film, video, negative, tape, disc or other device embodying visual and/or audio images and any disc, tape or other device embodying any other data.

(g) ‘Output Materials’ means any Materials or any data or other information provided, created or developed by the Supplier in its performance of the Services;

(h) “Scope of Work” means the description of the work to be performed by the Supplier, as prepared by the Supplier based on the information provided by the Client, and will set out the agreed goals and messages and the Estimate for each project or job and which, upon sign-off by the Client, will immediately be incorporated into the Agreement;

(i) ‘Services’ means the services to be provided by the Supplier for the Client as set out and agreed in the Scope of Work;

(j) ‘Supplier’ means Words by Nuance Pty Ltd (ACN 156 010 749) of Level 1, 46-52 Meagher Street, Chippendale NSW 2008

(k) ‘Supplier’s Materials’ means any Materials and any data or other information provided by the Supplier relating to the Services which it owned prior to the commencement of this Agreement;

(l) ‘Terms’ means these terms and conditions; and

(m) The headings in these Terms are for convenience only and will not affect their interpretation.

2. Supply of the Services

(a) The Supplier will provide the Services to the Client under this Agreement and subject to these Terms. Any changes or additions to the Services or this Agreement must be agreed in writing by the Supplier and the Client.

(b) The Supplier agrees to provide the Client with a Scope of Work.

(c) The Scope of Work and any Estimate must be signed off by an authorised representative of the Client before the Supplier can commence any work and such approval shall constitute the Client’s unqualified acceptance of these Terms and of the Agreement.

(d) An Estimate will not be required where there is a separate agreement that instructs the Supplier to commence a project or job.

(e) If the Client decides, for any reason to change the Scope of Work after it has been signed off by an authorised representative of the Client, it must notify the Supplier immediately and upon receipt of such notification the Supplier will cease performing the Services and the Supplier and the Client will then agree a new Scope of Work on new terms and with a revised Estimate taking into account the work already performed by the Supplier.

(f) The Client will at its own expense supply the Supplier with all necessary Materials within sufficient time to enable the Supplier to provide the Services in accordance with any time period provided in the Scope of Work (if any) or as otherwise agreed between the parties. The Client will ensure, and is solely responsible for, the accuracy of all of the Client’s Materials.

(g) The Client will at its own expense retain duplicate copies of all of the Client’s Materials and insure against its accidental loss or damage. The Supplier will have no liability for any such loss or damage, however caused.

(h) All Output Materials will be at the sole risk of the Client from the time of delivery to the Client.

(i) The Supplier may at any time without notifying the Client make any changes to the Services which are necessary to comply with any applicable safety or other statutory requirements, or which do not materially affect the nature or quality of the Services.

3. Charges

(a) Subject to any special terms agreed in the Scope of Work or the Estimate, in consideration for the Services, the Client will pay the Supplier’s fees articulated in the Scope of Work and/or Estimate as well as any additional sums which are agreed between the Supplier and the Client for the provision of the Services or which, in the Supplier’s sole discretion, are required as a result of the Client’s instructions or lack of instructions, change to the Scope of Work, the inaccuracy of any of the Client’s Materials or any other cause attributable to the Client.

(b) All charges quoted to the Client for the provision of the Services are exclusive of any GST, for which the Client will be additionally liable at the applicable rate from time to time.

(c) Supplier will be entitled to invoice the Client following the end of each month in which the Services are provided, or upon completion of the Services, or at such other times as may be agreed with the Client.

(d) The Supplier’s charges as agreed in the Estimate and any additional sums payable in accordance with this Agreement will be paid by the Client (together with any applicable GST, and without any set-off or other deduction) within 30 days of the date of Supplier’s invoice (‘Due Date’).

(e) If payment is not made on the Due Date, the Supplier will be entitled, without limiting any other rights it may have, to charge interest on the outstanding amount (both before and after any judgment) at the Total rate of interest published on the Office of State Revenue’s website (http://www.osr.nsw.gov.au/info/compliance/penalty) for the relevant period from the Due Date accrued daily until the outstanding amount is paid in full.

4. Revision charges

(a) The Scope of Work and any Estimate allow for two, low level copy revisions and accommodate minor changes “within reason”, which means simple additions and deletions to copy or small layout changes, being as a general rule, less than 10% of the original work.

(b) Changes greater than those provided for in 4(a) above will be charged additional revision charges as determined by the Supplier.

5. Rights in the Materials

(a) Subject to this clause 5, the property, right and title in and to any copyright or other intellectual property rights (“the Rights”) in –

(i) any of the Client’s Materials will belong to the Client;

(ii) any of the Supplier’s Materials will belong to the Supplier;

(iii) any Output Materials will belong to the Client, unless otherwise agreed in writing.

(b) In respect of the Client’s Materials, the Client grants the Supplier a worldwide, non-exclusive, royalty-free licence to use the Rights in those Materials for the purposes of performing the Services until the termination or expiration of this Agreement;

(c) In respect of the Supplier’s Materials, the Supplier grants the Client a worldwide, non-exclusive, royalty-free licence to use the Rights in those Materials for the purposes of utlising the Services only until the termination or expiration of this Agreement;

(d) In respect of the Output Material, the Client grants to the Supplier a perpetual, worldwide, non-exclusive, irrevocable, royalty-free licence to use the Rights in those Materials for any purposes provided that such use is not for businesses which compete directly with the Client or provide services substantially the same as the Client.

(e) Each party to this Agreement must not disclose any Confidential Information during and after the term of engagement except in the following circumstances:

(i) Where the other party has given its prior written consent;

(ii) In the proper course of performing the Services and for the benefit of the other party; or

(iii) To the extent required by law.

(f) The Client warrants that any of the Client’s Materials and its use by the Supplier for the purpose of providing the Services will not infringe the Rights of any third party.

(g) Subject to clause 7 and subject to the Client’s warranty in (f) above, the Supplier warrants that any Output Materials will not infringe the Rights of any third party.

(h) The Client agrees and acknowledges that the Client shall use any Materials supplied by the Supplier, including the Output Materials, only for their intended purpose and shall not make copies of or provide any Materials supplied by the Supplier, including the Output Materials, to any third party including in particular those in direct competition with the Supplier or providing services substantially similar to those supplied by the Supplier without the Supplier’s prior written approval.

(i) Each Party will do all such acts, and execute all such documents as is required by the other Party to confirm, vest and enforce all of the rights granted under this Agreement.

6. Seeking to employ staff

(a) Both parties agree not to seek directly or indirectly to employ permanently or temporarily each other’s staff or contractors, during the period of this Agreement, any extension thereof or for 12 months after termination or expiry of this Agreement.

(b) Any such approach identified in 6(a) above will result in payment of fair and reasonable damages for loss of revenue and/or expertise which will not be less than 6 months of the salary or fee to be earned by the staff member or contractor.

(c) Both parties hereby acknowledge and agree that the restraints contained in this clause 6 are reasonable in scope and duration having regard to the interests of the parties to this Agreement and goes no further than is reasonably necessary to protect the business and commercial interests of the other party.

7. Warranties and Liability

(a) The Supplier warrants to the Client that the Services will be provided using reasonable care and skill and, as far as reasonably possible, in accordance with the applicable Estimate and Scope of Work and at the intervals and within the timeframes referred to in the Scope of Work. There are no other express or implied warranties. For any breach of warranty, the Client’s exclusive remedy will be the re-performance of the deficient Services or a recovery of the fees paid to the Supplier for the deficient Services.

(b) Where the Supplier supplies in connection with the provision of the Services any goods supplied by a third party, the Supplier does not give any warranty, guarantee or other term as to their quality, fitness for purpose or otherwise, but will, where possible, assign to the Client the benefit of any warranty, guarantee or indemnity given by the person supplying the goods to the Supplier.

(c) The Supplier will have no liability to the Client for any loss, damage, costs, expenses or other claims for compensation arising from any of the Client’s Materials, agreed Scope of Work or instructions supplied by the Client which are incomplete, incorrect, inaccurate, illegible, out of sequence or in the wrong form, or arising from their late arrival or non-arrival, or any other fault of the Client.

(d) The Supplier will not be liable to the Client by reason of any representation or any implied warranty, condition or other term, or any duty in tort or at common law, or under the express terms of the Agreement, for any loss of profit or any indirect, special or consequential loss, damage, costs, expenses or other claims (whether caused by the negligence of the Supplier, its officers, employees or agents or otherwise) which arise out of or in connection with the provision of the Services or their use by the Client, and the entire liability of the Supplier under or in connection with this Agreement will not exceed the amount of the Supplier’s charges for the provision of the Services.

(e) Supplier will not be liable to the Client or be deemed to be in breach of this Agreement by reason of any delay in performing, or any failure to perform, any of the Supplier’s obligations in relation to the Services, if the delay or failure was due to any cause beyond the Supplier’s reasonable control.

(f) The Client will treat the Supplier’s Materials in good faith and solely for the purposes of utilising the Services provided for under this Agreement.

(g) The Client will be responsible for the acts (and/or omissions) of any third parties conducting business with the Supplier through the Client and/ or contracted, licensed or permitted to exploit the Supplier’s Services, Materials or works by the express permission of the Client.

(h) To the extent permitted by law, the Supplier does not make any representations or warranties that any information, of any form, provided or made available by the Supplier, is reliable, accurate, or complete, and the Supplier makes no guarantees of any specific result from use of the Output Materials, the Services or the information provided therein and the Supplier disclaims any and all liability arising from any action taken or reliance by the Client on any such information.

8. Termination

(a) In addition to any right of termination provided in the Scope of Work, either party may (without limiting any other remedy) at any time terminate the Agreement by giving written notice to the other if the other commits any material breach of the Agreement and (if capable of remedy) fails to remedy the breach within 30 days after being required by written notice to do so, or if the other goes into liquidation, or (in the case of an individual or firm) becomes bankrupt, makes a voluntary arrangement with its creditors or has a receiver or administrator appointed.

9. General

(a) This Agreement constitutes the entire agreement between the parties, supersedes any previous agreement or understanding and may not be varied unless agreed to in writing by both parties. All other terms and conditions express or implied by statute or otherwise, are excluded to the fullest extent permitted by law.

(b) Unless otherwise agreed in writing by both parties these Terms will apply every time the Supplier is retained by the Client to perform services at any time in the future

(c) Any notice required or permitted to be given by either party to the other under these Terms will be in writing addressed to the other party at its registered office or principal place of business or such other address as may at the relevant time have been notified, pursuant to this provision, to the party giving the notice.

(d) No failure or delay by either party in exercising any of its rights under the Agreement will be deemed to be a waiver of that right, and no waiver by either party of any breach of the Agreement by the other will be considered as a waiver of any subsequent breach of the same or any other provision.

(e) If any provision of these Terms is held by any competent authority to be invalid or unenforceable in whole or in part, the validity of the other provisions of these Terms and the remainder of the provision in question will not be affected.

(f) Nothing in this Agreement will create or constitute or be taken to create or constitute a partnership, joint venture or agency between the parties.

(g) The Client may not assign, novate or otherwise transfer any of its rights or obligations under this Agreement without the prior written consent of the Supplier.

(h) Any term or warranty of this Agreement will survive the expiry of termination of this Agreement which in order to give effect to its provisions needs to survive the said expiry or termination.

(i) The law of New South Wales will apply to the Agreement, and the parties agree to submit to the non-exclusive jurisdiction of the courts of New South Wales.

(j) Each party represents and warrants to the other that the person who signs the Scope of Work and Estimate is duly authorised to do so and that by signing the Scope of Work and Estimate that party also agrees to be bound by these Terms and altogether this Agreement is valid, binding and enforceable upon such execution.