Terms and Conditions

The following are our general terms and conditions.  If you have a custom professional service agreement with us, that will apply.  For all other projects and contracts the following are our terms and conditions. 


Overview

This agreement governs your purchase and receipt of our professional services. By accepting this agreement, either by clicking a box indicating your acceptance or by executing a quote or purchase order form that references these terms & conditions, you agree to these terms. If you are entering into this agreement on behalf of a company or other legal entity, you represent that you have the authority to bind such entity and its affiliates to these terms and conditions, in which case the terms “you” or “your” shall refer to such entity and its affiliates. If you do not have such authority, or if you do not agree with these terms and conditions, you must not accept this agreement and may not receive the professional services. You may not receive Professional Services if You are Our direct competitor, except with Our prior written consent. In addition, You may not receive Professional Services for purposes of evaluating or monitoring their quality or performance, or for any other benchmarking or competitive purposes. This Agreement is effective between You and Us as of the date of Your accepting this Agreement. If there is any inconsistency between these Terms and Conditions and the Special Conditions of a Quote then the Quote takes priority.

1. DEFINITIONS

1.1 Definitions

“Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity. For purposes of this definition, “control” means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity, including a company, corporate trustee or unit trust.

“Agreement” means this Professional Services Agreement, the Quote and any exhibits, schedules and addenda.
“Change Order” means any change to a Quote or Purchase Order Form, as applicable, as described in clause 4.3. Change Orders will be deemed incorporated by reference in the applicable Quote or Purchase Order Form, as applicable in the absence of a Quote.

“Data” means the data provided to us in the course of provision of the Professional Services, including the names, contact details, reference information and other personal information of Your customers provided to Us in the course of provision of the Professional Services. If this includes sensitive personal information of Your customers then you will notify us in writing in advance of our preparing a Quote.

“Deliverable” means a deliverable under a Quote or Purchase Order Form.

“Intellectual Property” means all industrial and intellectual property rights, both in Australia and throughout the world, and includes any copyright, Moral Right, patent, registered or unregistered trade mark, registered or unregistered design, trade secret, knowhow, source code, coding, code library, right in relation to semiconductors and circuit layouts, trade or business or company name, indication or source or appellation of origin or other proprietary right, or right of registration of such rights.

“Online Services” means any online, web-based services and associated offline components made available by Us (or one or more of Our Affiliates) to You under a separate agreement.

“Our Materials” means any material provided by or to which access is given by Us to You for the purposes of this Agreement and the provision of Professional Services including Intellectual Property advice, strategies, code, code libraries, reports, statistics, drafts, schematics, diagrams, recordings, documents, equipment, technical information, studies, plans, charts, drawings, calculations, tables, schedules and data stored by any means whatsoever.

“Moral Rights” means:
a) the right of integrity of authorship;
b) the right of attribution of authorship; and
c) the right not to have authorship falsely attributed, including those rights as conferred by the Copyright Act 1968 (Cth), and rights of a similar nature anywhere in the world whether existing before, on or after the commencement of this agreement.

“Professional Services” means work performed by Us, Our Affiliates, or Our or their respective permitted subcontractors under a Quote or Purchase Order Form, including Our provision of any Deliverables specified in a Quote or Purchase Order Form.

“Purchase Order Form” means an ordering document issued by Us specifying the Professional Services to be provided and that is entered into between You and Us or any of Our Affiliates, including any variations or supporting materials approved by the parties in writing. Purchase Order Forms governed, in whole or in part, by this Agreement must have a Quote number attached or expressly state that the Purchase Order Form or certain Professional Services provided are governed by this Agreement. By entering into a Purchase Order Form, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original party to the agreement. Notwithstanding any language to the contrary in the Purchase Order Form, all Professional Services purchased under a Purchase Order Form are purchased separately from the Online Services and all references to “Purchase Order Form” shall not apply in any way to any Online Services, including without limitation, with respect to payment obligations and termination rights.

“Quote” means a quotation issued by Us with a quotation reference number which includes a scope of work describing the Professional Services to be provided (including deliverables, milestones and exclusions (where applicable) entered into between You and Us or any of Our Affiliates or which is incorporated into a Purchase Order Form that is entered into between You and US or any of Our Affiliates. An Affiliate of Ours that executes a Quote with You will be deemed to be

“Us” as such term is used in this Agreement. Quotes or Purchase Order Forms will be deemed incorporated by reference.

“We,” “Us,” or “Our” means Vincent 3 Pty Ltd trading as Blirt Marketing ABN 54 428 579 821.

“You” or “Your” means the company or other legal entity for which you are accepting this Agreement together with Affiliates of that company or entity which have signed the Quote or Purchase Order Forms for Professional Services.

“Your Materials” means the materials that you provide to us in connection with the provision of the Professional Services which may include your Intellectual Property and/or your Data in the form of documents, databases, recordings, graphics, branding and audio visual development (including digital copies) belonging to You or held by You.

2. PROFESSIONAL SERVICES

2.1 Scope of Professional Services
We will provide to You the Professional Services specified in each Quote or Purchase Order Form (as applicable), subject to Your payment of all applicable fees as set forth in the “Fees” section of this Agreement.

2.2 Relationship to Online Services
This Agreement is limited to Professional Services and does not convey any right to use Online Services. Any use of Online Services by You will be governed by a separate agreement. You agree that Your purchase of Professional Services is not contingent on the delivery of any future Online Service functionality or features, other than Deliverables, subject to the terms of the applicable Quote or Purchase Order Form, or on any oral or written public comments by Us regarding future Online Service functionality or features.

3. COOPERATION

3.1 Cooperation
You will cooperate reasonably and in good faith with Us in Our performance of Professional Services by, without limitation:
(a) allocating sufficient resources and timely performing any tasks reasonably necessary to enable Us to perform Our obligations under each Quote or Purchase Order Form;
(b) timely delivering any materials and other obligations required under each Quote or Purchase Order Form;
(c) timely responding to Our inquiries related to the Professional Services;
(d) assigning an internal project manager for each Quote or Purchase Order Form to serve as a primary point of contact for Us;
(e) actively participating in scheduled project meetings;
(f) providing, in a timely manner and at no charge to Us, office workspace, telephone and other facilities, suitably
configured computer equipment with Internet access, access to Your appropriate and knowledgeable employees and agents, and continuous administrative access to Your Online Service account, and coordination of onsite, online and telephonic meetings all as reasonably required by Us; and
(g) complete, accurate and timely information, data and feedback all as reasonably required.

3.2 Delays
Any delays in the performance of Professional Services or delivery of Deliverables caused by You may result in additional applicable charges for resource time.

4. DELIVERY, ACCEPTANCE AND CHANGE ORDERS

4.1 Delivery of Services
We will provide the Professional Services, including any Deliverables, in accordance with the Agreement and the applicable Quotes or Purchase Order Forms.

Acceptance. Upon completion of each Deliverable under a Quote or Purchase Order Form, We will, as applicable: (a) submit a complete copy to You; and (b) at Your request, demonstrate its functionality to You. You are responsible for reviewing and testing all Deliverables in accordance with the Quote or Purchase Order Form pursuant to any acceptance criteria or test plans mutually agreed upon in writing by the parties for such Deliverable. You will provide Us with written notification of acceptance for each Deliverable promptly upon acceptance; however, failure to reject a Deliverable, as set forth below, will be deemed acceptance. If You, in Your reasonable and good faith judgment, determine that any submitted Deliverable does not satisfy the agreed acceptance criteria as specified in the Quote or as mutually agreed upon in writing by the parties for such Deliverable, You must so notify Us in writing within 10 business days after Our submission of the Deliverable, specifying the deficiencies in detail. We will use commercially reasonable efforts to correct such deficiencies and resubmit the Deliverable to You as soon as practicable. You will again review and test the Deliverable against the agreed-upon acceptance criteria, and detail any deficiencies to Us in writing within 10 business days after resubmission of the Deliverable.

If a Deliverable fails to meet the functional requirements specified in the Quote or Purchase Order Form after its second resubmission to You, You may either, as Your sole and exclusive remedy: (i) again reject the Deliverable and return it to Us for further correction and resubmission in accordance with the process described above (if the Deliverable is not accepted after two resubmissions, the matter will be escalated to Your executive sponsor for the project associated with the Quote or Purchase Order Form and Our Engagement Manager) or (ii) terminate the Quote or Purchase Order Form immediately upon written notice and recover all Professional Services fees paid under the Quote or Purchase Order Form for such deficient Deliverable. If the parties determine that a Deliverable’s functional requirements specified in a Quote or Purchase Order Form require modification (for example, due to incorrect assumptions or changed requirements), they will cooperate in good faith to execute a Change Order for such revised requirements.

4.2 No Effect on Warranty Remedies
Acceptance of Professional Services, including a Deliverable, will not affect Your rights or remedies under the“Warranty” section below.

4.3 Change Orders
Changes to a Quote or Purchase Order Form will require a written Change Order signed by the parties prior to implementation of the changes. Such changes may include, for example, changes to the scope of work and any corresponding changes to the estimated fees and schedule.

5. FEES, INVOICING AND TAXES

5.1 Fees
You will pay Us for the Professional Services at the rates specified in the Quote or Purchase Order Form, or if no rate is specified in the Quote or Purchase Order Form, Our standard rates in effect at the time the Quote or Purchase Order Form is executed. Professional Services are provided on either a time-and-materials or fixed fee basis, as provided in a Quote or Purchase Order Form. Any amount set forth in a time-and-materials Quote is solely a good-faith estimate for Your budgeting and Our resource-scheduling purposes and is not a guarantee that the work will be completed for that amount; the actual amount may be higher or lower. If the estimated amount is expended, We will continue to provide Professional Services under the same rates and terms. We will periodically update You on the status of the Professional Services and the fees accrued under Quotes or Purchase Order Forms.

5.2 Incidental Expenses.
You will reimburse Us for reasonable travel and out-of-pocket expenses incurred in connection with Professional Services. If an estimate of incidental expenses is provided in the Quote or Purchase Order Form, We will not exceed such estimate without Your prior written consent.

5.3 Invoicing and Payment
Charges for time-and-materials engagements will be invoiced monthly in arrears unless otherwise expressly stated in the Quote or Purchase Order Form. Charges for fixed fee engagements will be invoiced in advance in the manner as provided in the Quote or Purchase Order Form, as applicable, unless otherwise expressly stated therein. Invoiced amounts will be due and payable within 14 days from the invoice date. You are responsible for providing Us with Your complete and accurate billing and contact information and notifying Us of any changes to such information.

5.4 Overdue Charges
Subject to the “Payment Disputes” section, if any invoiced amount is not received by Us by the due date, then without limiting Our rights or remedies, (a) those charges may accrue late interest at the rate of the published Bank Bill Swap Rate plus 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, and/or (b) We may condition future purchases of Professional Services on payment terms shorter than those specified in clause 5.3 (Invoicing and Payment). The parties agree that this is a fair and reasonable rate for default interest to be calculated.

5.5 Suspension of Professional Services
Subject to the “Payment Disputes” section, if any amount owing by You under this or any other agreement for our Professional Services is 30 days or more overdue, We may, without limiting Our other rights and remedies, suspend Our performance of Professional Services until such amounts are paid in full.

5.6 Payment Disputes
We will not exercise Our rights under the “Overdue Charges” or “Suspension of Professional Services” clauses above if You are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute.

5.7 Taxes
Our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). You are responsible for paying all Taxes associated with Your purchases (including Goods and Services Tax). If We have the legal obligation to pay or collect Taxes for which You are responsible under this section, We will invoice You and You will pay that amount, unless You provide Us with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, We are solely responsible for taxes assessable against Us based on Our income, property and employees.

6. PROPRIETARY RIGHTS AND LICENSES

6.1 Your Intellectual Property
You only grant to Us the rights in or to use Your intellectual property or Your Data as may be required for Us to perform Our obligations.

6.2 Licence to Us
You agree to grant us a non-exclusive, royalty-free irrevocable licence to use Your Intellectual Property solely for the purposes of providing the Professional Services and in accordance with the terms of this Agreement. Nothing in this Agreement grants to Us the right to ownership of Your Intellectual Property.

6.3 Licence to You
We licence to You the right to use Our Intellectual Property during the term of this Agreement to assist Us in the provision of the Professional Services by you. This licence may be terminated by Us upon the creation of the licence described in clause 6.5 or upon termination of this Agreement by Us for cause. Nothing in this Agreement grants You the right to ownership of Our Intellectual Property.

6.4 Confidential Information
As between the parties, each party retains all ownership rights in and to its Confidential Information.

6.5 License for Contract Property
Upon Your payment of fees due under an the Quote or Purchase Order Form, We grant You a worldwide, perpetual, non-exclusive, non-transferable, royalty-free license to copy, maintain, use and run (as applicable) solely for Your internal business purposes associated with Your use of Our online and offline services anything developed by Us for You, including Deliverables, under this Agreement (“Contract Property”). Each party hereto each retains all right, title and interest in its respective intellectual property and We retain all ownership rights in the Contract Property.

7. CONFIDENTIALITY

7.1 Definition of Confidential Information
"Confidential Information" means all information disclosed by a party ("Disclosing Party") to the other party ("Receiving Party"), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information of each party includes the terms and conditions of this Agreement and all Quotes or Purchase Order Forms (including pricing), as well as business and marketing plans, strategies, data, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.

7.2 Protection of Confidential Information
The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to (i) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates' employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections not materially less protective of the Confidential Information than those herein. Neither party will disclose the terms of this Agreement or all Quote or Order Form to any third party other than its Affiliates, legal counsel and accountants without the other party's prior written consent, provided that a party that makes any such disclosure to its Affiliate, legal counsel or accountants will remain responsible for such Affiliate's, legal counsel's or accountant's compliance with this "Confidentiality" section.

7.3 Compelled Disclosure
The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party's Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.

7.4 Joint Marketing Disclosure
The parties agree that at the time of completion of the Professional Services We will provide a joint media release to You summarising the general nature of the Professional Services provided to You and that You will act reasonably when considering the wording of the joint media release and provide your reasonable approval to the release of this joint media statement. You will review and where applicable approve the release of a joint media release for the purpose of permitting Us to market the quality of Our services. We agree not to include any Data or Your Confidential Information in the joint media release or any sensitive information which may be a commercial disadvantage to You or Your Affiliates.

8. REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS

8.1 Representations
Each party represents that it has validly entered into this Agreement and has the legal power to do so.

8.2 Warranty
We warrant that the Professional Services will be performed in a professional and workmanlike manner in accordance with generally accepted industry standards. For any breach of the above warranty, Your exclusive remedy and Our entire liability will be the re-performance of the applicable Professional Services. If We are unable to re-perform the Professional Services as warranted, You will be entitled to recover the Professional Services fees paid to Us for the deficient Professional Services. You must make any claim under the foregoing warranty to Us in writing within 90 days of performance of such Professional Services in order to receive warranty remedies.

8.3 Your Data
You warrant to Us that the Data you provide to Us in the course of the term of this Agreement is obtained by you and provided to Us with the consent of the person or organization to which the Data belongs. You warrant that the Data is accurate and correct at the time of provision of the Data to Us and that we may rely on the accuracy of this Data for the purposes of the provision of Professional Services to You.

8.4 Protection of Your Data
We warrant that the Professional Services will be performed in a manner intended to protect your Confidential Information and Data. In the performance of the Professional Services we will comply with the Privacy Act 1988 (Cth) as it applies to Us and the terms of Our Privacy Statement and Information Security Policy (as amended from time to time). For any breach of the above warranty, Your exclusive remedy and Our entire liability will be the re-performance of the applicable Professional Services. If We are unable to re-perform the Professional Services as warranted, You will be entitled to recover the Professional Services fees paid to Us for the deficient Professional Services. You must make any claim under the foregoing warranty to Us in writing within 90 days of performance of such Professional Services in order to receive warranty remedies.

8.5 Indemnity for use of Data

You indemnify us in full for any claim made against Us or damages incurred by Us for any breach by Your or Your Affiliates of the warranty in clause 8.3.

8.6 Disclaimer
THIS WARRANTY IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES AND NEITHER PARTY MAKES ANY OTHER WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.

9. INDEMNIFICATION

9.1 Indemnification by Us
We will defend You against any claim, demand, suit or proceeding ("Claim") made or brought against You by a third party arising out of death, personal injury or damage to tangible property to the extent caused by Our personnel in their performance of the Professional Services, and will indemnify You for any damages, fees and costs finally awarded against You as a result of, or for amounts paid by You under a settlement approved in writing by Us of, any such Claim, all of the foregoing to the extent caused by Our personnel, provided that You: (a) promptly give Us written notice of the Claim; (b) give Us sole control of the defence and settlement of the Claim (except that We may not settle any Claim unless it unconditionally releases You of all liability); and (c) give Us all reasonable assistance, at Our cost. The above defence and indemnification obligations do not apply to the extent a Claim arises from Your breach of this Agreement, Quotes or Purchase Order Forms.

9.2 Mutual Indemnity
Each party (the "Provider") will defend the other party (the "Recipient") against any Claim made or brought against the Recipient by a third party alleging that any information, design, specification, instruction, software, data or material furnished by the Provider hereunder ("Material") infringes or misappropriates such third party's intellectual property rights, and will indemnify the Recipient from any damages, legal fees and costs finally awarded against the Recipient as a result of, or for amounts paid by Recipient under a settlement approved in writing by Provider of, any such Claim, provided that the Recipient: (a) promptly gives the Provider written notice of the Claim; (b) gives the Provider sole control of the defense and settlement of the Claim (except that the Provider may not settle any Claim unless it unconditionally releases the Recipient of all liability); and (c) gives the Provider all reasonable assistance, at the Provider's cost. The Provider will have no liability for any such Claim to the extent that (i) it arises from specifications or other Material provided by the other party, or (ii) such claim is based on the Recipient's use of a superseded or altered version of Material if infringement or misappropriation would have been avoided by the use of a subsequent or unaltered version of the Material that was provided to the Recipient. In the event that some or all of the Material is held or is reasonably believed by the Provider to infringe or misappropriate, the Provider may in its discretion and at no cost to the Recipient (A) modify or replace the Material so it is no longer claimed to infringe or misappropriate, (B) obtain a license for the Recipient's continued use of the Material in accordance with this Agreement, or (C) require return of the affected Material and all rights thereto from the Recipient. If the Provider exercises option (C), either party may terminate the Quote or Purchase Order Form upon 10 days' written notice given within 30 days after the Provider's exercise of such option, subject to clause 11.4.

9.3 Exclusive Remedy
This "Indemnification" section states the indemnifying party's sole liability to, and the indemnified party's exclusive remedy against, the other party for any type of Claim described in this section.

10. LIMITATION OF LIABILITY

10.1 Limitation of Liability
IN NO EVENT SHALL THE AGGREGATE LIABILITY OF EACH PARTY TOGETHER WITH ALL OF ITS AFFILIATES ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY YOU AND YOUR AFFILIATES FOR THE QUOTE OR PURCHASE ORDER FORM OUT OF WHICH THE LIABILITY AROSE. THE LIMITATION IN THIS CLAUSE WILL APPLY WHETHER AN ACTION IS IN

CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, BUT WILL NOT LIMIT YOUR AND YOUR AFFILIATES' PAYMENT OBLIGATIONS UNDER CLAUSE 5.

10.2 Exclusion of Consequential and Related Damages
IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOST PROFITS, REVENUES, GOODWILL, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL COVER, BUSINESS INTERRUPTION, OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT, AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF A PARTY'S OR ITS AFFILIATES' REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE.

11. TERM AND TERMINATION

11.1 Term
This Agreement commences on the Effective Date and will remain in effect until terminated in accordance with this clause 11.

11.2 Termination for Convenience
Either party may terminate this Agreement at any time for convenience upon 30 days' prior written notice to the other. To the extent there are current Quotes or Purchase Order Forms in effect where the Professional Services are being provided when a party terminates this Agreement, such Quotes or Purchase Order Forms shall continue to be governed by this Agreement as if it had not been terminated until the works are completed. You may terminate an individual Quote or Purchase Order Form for convenience to the extent set forth in the Quote or Purchase Order Form, if there is no reference in the Quote or Purchase Order Form to a right to terminate for convenience then this clause 11.2 applies.

11.3 Termination for Cause
A party may terminate this Agreement and/or all Quote or Purchase Order Form for cause: (i) upon 30 days prior written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) immediately if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.

11.4 Payment Upon Termination
Upon any termination of a Quote or Purchase Order Form, You will pay, in accordance with the Invoicing and Payment clause of this Agreement, any unpaid fees and expenses incurred on or before the termination date (such Professional Services fees to be paid on a time-and-materials or percent-of-completion basis, as appropriate). In the event that You terminate a Quote or Purchase Order Form for cause and You have pre-paid any fees for Professional Services not yet received, We will refund such pre-paid fees. In the event that We terminate a Quote or Purchase Order Form for cause, any pre-paid fees for Professional Services charged on a fixed-fee basis are non-refundable, unless expressly stated otherwise in a Quote or Purchase Order Form. The parties accept that any fixed-fees paid are in consideration for the time and materials incurred by Us in preparing for the provision of the Professional Services and that Our right to retain these pre-paid fees is fair and reasonable and intended to compensate Us commercially for the works not proceeding.

11.5 Surviving Provisions
The clauses titled "Contract Property," "Confidentiality," "Representations, Warranties, Exclusive Remedies and Disclaimers," "Fees, Invoicing and Taxes," "Indemnification," "Limitation of Liability," "Term and Termination" and "General" will survive any termination or expiration of this Agreement.

12. INSURANCE

12.1 Insurance
Each party will maintain, at its own expense during the term of this Agreement, insurance appropriate to its obligations under this Agreement, including as applicable general commercial liability, errors and omissions, employer liability, automobile insurance, and worker's compensation insurance as required by applicable law.

13. NOTICES, GOVERNING LAW AND JURISDICTION

13.1 Manner of Giving Notice
Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery, (ii) the second business day after mailing, (iii) the second business day after sending by confirmed facsimile, or (iv) the first business day after sending by email (provided email shall not be sufficient for notices of termination or an indemnifiable claim). Billing related notices to You shall be addressed to the relevant billing contact designated by You. All other notices to You shall be addressed to the relevant Services system administrator designated by You.

13.2 Agreement to Governing Law and Jurisdiction
Each party agrees to the governing law of the State of Queensland and the Commonwealth of Australia without regard to choice or conflicts of law rules, and to the exclusive jurisdiction of the applicable courts of this jurisdiction.

14. GENERAL PROVISIONS

14.1 Compliance with Laws
You will comply with all laws and governmental rules and regulations that apply to You in Your performance of its obligations and exercise of Your rights, under this Agreement.

14.2 Export Compliance
The Professional Services may rely on software which may be subject to export laws and regulations of the United States of America (U.S.) and other jurisdictions. Each party represents that it is not named on any U.S. government denied-party list. Neither party will access or use any Deliverables or Confidential Information provided to it hereunder in a U.S. embargoed country or region (currently the Crimea region, Cuba, Iran, North Korea, Sudan or Syria) or in violation of any U.S. export law or governmental regulation.

14.3 Anti-Corruption
Neither party has received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from an employee or agent of the other party in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction.

14.4 Entire Agreement and Order of Precedence
This Agreement is the entire agreement between You and Us regarding Our provision and Your receipt of Professional Services and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement will be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. Notwithstanding any language to the contrary therein, no terms or conditions stated in Your purchase order or in any other of Your order documentation will be incorporated into or form any part of this Agreement, and all such terms or conditions will be void. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) the Quote or Purchase Order Form, (2) any exhibit, schedule or addendum to this Agreement and (3) this Agreement.

14.5 Relationship of the Parties
The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. Each party will be solely responsible for payment of all compensation owed to its employees, as well as all employment-related taxes.

14.6 Third Party Beneficiaries
There are no third-party beneficiaries to this Agreement.

14.7 Subcontractors
We may, in Our reasonable discretion, use subcontractors inside or outside Australia to perform any of its obligations. We will be responsible for the performance of Professional Services by its personnel (including employees and contractors) and their compliance with Our obligations under this Agreement, except as otherwise specified.

14.8 Waiver
No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right.

14.9 Severability
If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect.

14.10 Assignment
Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party's prior written consent (not to be unreasonably withheld), provided however, either party may assign this Agreement in its entirety (including all Quotes or Purchase Order Forms, as applicable), without the other party's consent, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Notwithstanding the foregoing, if a party is acquired by, sells substantially all of its assets to, or undergoes a change of control in favor of, a direct competitor of the other party, then such other party may terminate this Agreement upon written notice. A party's sole remedy for any purported assignment by the other party in breach of this paragraph will be, at the non-assigning party's election, termination of this Agreement upon written notice to the assigning party. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.