Standard Terms & Conditions
1.1 These General Terms & Conditions shall apply to all contracts for services (“DWS Services”, as defined in clause 2) performed by Digital Water Solutions Pty Ltd. (referred to as “DWS” in the following) to the extent that they are not explicitly deviated from by agreement in writing.
1.2 An offer for the carrying-out of DWS Services shall be binding on DWS only if (i) made in writing by DWS, and (ii) accepted in writing by the Client within two (2) months after the date of the offer. The offer and acceptance for the carrying out of DWS Services is referred to below as “Agreement”.
2.1 “DWS Services” means the services to be performed by DWS under the Agreement.
2.2 DWS agrees to carry out the DWS Services conscientiously and using, to the best of its ability, the knowledge available to DWS or which DWS deems appropriate to obtain from sources other than DWS.
2.3 The quality of the DWS Services shall be judged solely as to whether the DWS Services have been performed consistent with the professional skill and care ordinarily provided by firms practicing in the same or similar locality and under the same or similar circumstances.
2.4 DWS makes no representations and extends no warranties of any kind, either express or implied. There are no expressed or implied warranties of merchantability or fitness for a particular purpose.
3.1 The Client shall make available- and provide to DWS, without charge and within a reasonable time, all pertinent data, information, assistance, equipment and facilities necessary for the performance of the DWS Services.
3.2 Upon request, the Client shall give its decision on all reports, recommendations and other matters properly referred to it for decision by DWS, within a reasonable time.
3.3 If the Client does not perform its obligations set out in clauses 3.1 and 3.2, DWS shall notify the Client of such delay in performance and shall be entitled to an appropriate time extension for the performance of the DWS Services and to receive compensation for incurred additional costs.
4.1 The Client shall pay for any use of special equipment (including but not limited to field equipment, investigation boats and computer facilities) at fixed rental rates determined in advance by DWS.
4.2 The Client shall reimburse DWS for incurred out of pocket expenses for outlays, special materials, subcontractors, and other costs paid to third parties, at DWS’s cost thereof plus a 5% supplement.
4.3 The Client shall pay DWS charges for automobile rental based on DWS’s actual cost with a supplement of 5% for driving with a trailer. Mileage driven by a DWS employee’s own motorcar will be charged at the mileage rate fixed by the Australian government.
4.4 The Client shall reimburse DWS for all incurred costs and expenses related to traveling, meals and accommodation.
5.1 In the absence of agreement in writing to the contrary, the prices and rates specified in DWS’s offer shall be an estimate based on prices in effect on the date of the offer, and DWS reserves the right to alter such prices to equal the prices and rates as of the date of delivery, subject to one (1) month’s written notice. This shall also apply to ongoing and agreed, but not initiated, services.
5.2 DWS reserves the right, once DWS begins to work on the DWS Services, to adjust its hourly rates and rental rates to reflect general annual increases in the prices for DWS’s services.
5.3 The specified prices are exclusive of 1) any and all indirect and direct taxes, VAT and other duties 2) any and all withholding taxes on international purchases.
5.4 DWS shall receive the full invoiced amount exclusive of any and all indirect and direct taxes, VAT and other duties as well as any and all withholding taxes on international purchases and otherwise be held harmless of any taxes imposed on DWS due to the Agreement.
6.1 The Client shall pay DWS at the intervals and stages, within the times, at the places and in the currencies stated in the Agreement.
6.2 Amounts due to DWS must be paid promptly and no later than fourteen (14) days after the date of the invoice (“Due Date”). If no Due Date is stated in the Agreement, payment shall be made fourteen (14) days after a payment request is made by DWS.
6.3 In the event of delays in any due payment, DWS shall be entitled to suspend performance of the DWS Services under the Agreement until payment has been made without being subject to any form of liability, indemnification obligations, penalty, termination or any other negative contractual consequences for DWS of any nature whatsoever, and DWS shall be granted an appropriate time extension on a day-for-day basis.
6.4 If the Client fails to pay DWS any due payment, the Client shall pay interest as from the Due Date equal to (i) the highest rate permitted by the Australian Interests Act in force at the Due Date, or (ii) the highest rate permitted by any other applicable law, whichever is the highest.
7.1 The tangible Results (reports, information summaries, analysis, calculations, assessments, surveys, layouts, drawings or the like) produced by DWS in connection with performing the DWS Services (“Delivered Materials”) shall be the property of the Client. To the extent necessary for the Client to use the Delivered Materials, DWS grants to the Client an irrevocable, royalty-free (not including software), world-wide and non- exclusive right to use DWS Property (as defined in clauses 7.2 and 7.3) for the purpose of using the Delivered Materials.
7.2 DWS possesses certain expertise, know-how, techniques, models, generic tools, scripts, concepts, processes, software (including third party licensed software) and other intellectual property rights, which have been and will be developed by DWS, and which relate to the DWS business operations in general (the “DWS Property”). DWS Property is and remains the exclusive property of DWS and DWS shall not be restricted in using DWS Property.
7.3 For the avoidance of doubt all know-how, tools, scripts, models, methods, and other intangible intellectual property rights developed by DWS or ascertained by DWS in connection with performing the DWS Services shall be the exclusive property of DWS and constitute an integral part of the DWS Property.
7.4 Any use of software will be subject to the terms and conditions set out in a separate license agreement for that software.
7.5 Each party retains all rights to its intellectual property that the party owned, created or acquired prior to the Agreement and/or the party created or acquired outside of the Agreement.
7.6 The Client cannot use DWS’s name, logo, or other trade names – including but not limited to in any publishing of the DWS Services, in any form – without DWS’s prior written approval.
7.7 DWS reserves the right to publish study results, if any, that DWS deems to be of general interest. However, if the Client finds that publication will be contrary to its interests and so informs DWS in writing prior to publication, DWS shall postpone publication for a reasonable period of maximum two (2) years from the date of completion of the study, the report or DWS Services (whichever comes first).
8.1 The Client must not, during the performance of the DWS Services (save in the proper course of its duties or due to fulfilment of statutory obligations) or at any time after expiry or termination of the Agreement, disclose or otherwise make use of any confidential information, which it has obtained or may in the course of the Agreement obtain either orally or in writing and on any medium, relating to the Agreement, to DWS, or to DWS’s business or finances which is by its nature confidential; or is designated by DWS as confidential; or the Client knows or ought to know is confidential. Confidential information does not include information which is or becomes public knowledge other than by a breach of these General Terms & Conditions or the Agreement; or is in the possession of the Client without restriction in relation to disclosure on or before the date on which it is disclosed to or acquired by the Client; or has been independently developed or acquired by the Client. The burden of establishing any of the exceptions referred to above will be on the Client.
9.1 If force majeure circumstances arise for which DWS is not responsible and which make it irresponsible or impossible to perform in whole or in part the DWS Services in accordance with the Agreement, DWS shall within a reasonable time inform the Client in writing of the force majeure situation.
9.2 If the DWS Services have to be suspended in whole or in part due to circumstances under this clause 9, the time for their completion shall be extended until the circumstances no longer apply, plus a reasonable period not exceeding one month for resumption of the suspended DWS Services.
9.3 If the speed of performing the DWS Services has to be reduced due to circumstances under this clause 9, the time for completion of the DWS Services shall be extended accordingly.
9.4 Force majeure circumstances include but are not limited to: acts of God (such as, but not limited to, fires, explosions, earthquakes, drought, tidal waves and floods), war, hostilities (whether war be declared or not), invasion, act of foreign enemies, mobilisation, requisition or compulsory acquisition by any governmental or competent authority , or embargo, rebellion, revolution, insurrection, or military or usurped power, or civil war, contamination by radioactivity from any nuclear fuel, or from any nuclear waste from the combustion of nuclear fuel, radioactive toxic explosive, or other hazardous properties of any explosive nuclear assembly or nuclear component of such assembly, riot, commotion, strikes, go slows, lockouts or disorder, or acts or threats of terrorism.
10.1 The Client may at any time by written notification, request variations in the DWS Services to be provided. If such variations result in an increase or a decrease in DWS Services, the time required for performance thereof or the compensation therefore, shall be modified accordingly in writing in a separate agreement in order for such changes to be valid.
11.1 In case of any suspension, postponement or delay in the performance of the DWS Services caused by the Client, the time for the completion of the DWS Services shall be extended until the circumstances no longer apply, plus a reasonable period not exceeding one month for resumption of the DWS Services. Such circumstances include, but are not limited to situations where DWS has not received all the information necessary to perform the DWS Services from the Client, cf. Clause 3 or due to lack of payment to DWS, cf. Clause 6.
12.1 DWS, expressly agrees to indemnify the Client from and against any and all loss, liability, expense, claims, suits, and damages, including reasonable attorneys’ fees, arising out of the death or bodily injury to any person or the destruction or damage to any property, to the extent caused by DWS’s negligent acts, errors or omissions in the performance of the DWS Services, except to the extent caused by the Client’s sole negligence or wilful misconduct, and subject to any limitations of liability contained in these General Terms & Conditions.
12.2 DWS’s duty to indemnify the Client under this provision does not include the duty to defend.
12.3 The Client expressly agrees to indemnify and hold harmless DWS from and against any and all loss, liability, expense, claims, suits, and damages, including reasonable attorneys’ fees, arising out of the death or bodily injury to any person or the destruction or damage to any property, to the extent caused by the Client’s negligent acts, errors or omissions, except to the extent caused by DWS’s sole negligence or wilful misconduct, and subject to any limitations of liability in these General Terms & Conditions. The Client’s duty to indemnify DWS under this provision does not include the duty to defend.
13.1 To the fullest extent permitted by law, and notwithstanding anything to the contrary in these General Terms & Conditions, the Agreement or as otherwise stated in documents and/or other correspondence between the parties, the liability and/or indemnification obligations of DWS, except for DWS’s gross negligence or wilful misconduct, shall be limited to an amount up to (i) the total remuneration for the DWS Services as set out in the Agreement, or (ii) the sum of one hundred thousand (100,000) Australian Dollars (AUD), whichever is the lowest.
13.2 DWS shall not be liable to the Client for any indirect, incidental or consequential damages, loss of profit, loss of goodwill, loss of business, loss of value, loss of production, loss of data, or any other form of indirect or consequential loss, or for any claims, losses, or damages to or incurred by the Client.
13.3 DWS shall not be liable for any claims, losses or damages to or incurred by the Client, its affiliates or any third party if the DWS Services have been amended in any way without the prior written consent of DWS or if the DWS Services have been used for anything other than the specific and intended use for which the DWS Services were created and delivered.
13.4 Any claim for indemnification or compensation is to be submitted to DWS within 2 years after delivery of the DWS Services to the Client or termination of the Agreement, whichever occurs first.
14.1 DWS shall maintain, for as long as may be necessary to cover its obligations and liabilities under or in connection with the Agreement and for as long as such insurance is available in the market on reasonable commercial terms, insurances with limits of indemnity for any one occurrence or series of occurrences arising out of any one event in respect of DWS’s liability under Clauses 12 and 13.
15.1 In the event of any breach by DWS of its obligations under these General Terms & Conditions or the Agreement, which DWS fails to remedy within ten (10) business days after receiving notice from the Client specifying the breach and requiring its remedy, the Client may at any time thereafter terminate the Agreement forthwith by notice to DWS.
15.2 In the event of any breach by the Client of the obligations under these General Terms & Conditions or the Agreement, which the Client fails to remedy within ten (10) business days after receiving notice from DWS specifying the breach and requiring its remedy, DWS may at any time thereafter terminate the Agreement forthwith by notice to the Client.
15.3 Upon termination of the Agreement, or postponement of the DWS Services under Clause 11, DWS shall be entitled to be paid for
(i) All amounts which are due under the Agreement and all parts of the DWS Services performed (irrespective of whether delivered to the Client or not) up to the effective date of such termination or postponement, less the amounts previously paid by the Client to DWS in respect of them, (ii) All reasonable costs incidental to the orderly termination of the Agreement, and (iii) an amount, except where termination of the Agreement was caused by breach by DWS of its obligations under the Agreement, in respect of any reasonable loss or damage suffered by DWS as a result of the termination.
16.1 The Client shall be familiar and in strict compliance with the U.S. Foreign Corrupt Practices Act, the Bribery Act of England and Wales, the United Nations Convention against Corruption, and any similar local legislations, statutes, regulations relating to anti-bribery and anti- corruption (jointly the “AC Rules”), its prohibitions and purposes, and will not undertake any actions that may violate the AC Rules.
16.2 If the Client fails to comply with any of the provisions of the AC Rules (irrespective of the size, nature or materiality of such violation), such failure shall be deemed to be a material breach of these General Terms & Conditions and the Agreement and any other agreement made with DWS.
16.3 The Client shall be in strict compliance with export controls, sanctions, import restrictions or other trade restrictions arising under any applicable law of any jurisdictions with respect to the Agreement and will not undertake any actions that may violate such restrictions.
16.4 Upon any compliance failure of this Clause 16, DWS shall have the right to terminate the performance of the DWS Services under the Agreement with immediate effect, upon written notice to the Client and without penalty or liability of any nature whatsoever. For the avoidance of doubt: DWS applies and the Client accepts the zero tolerance policy in terms of breach of this Clause 16.
16.5 The Client acknowledges that a violation of this Clause 16 shall be deemed a material breach of these General Terms & Conditions or the Agreement, and that the Client shall defend, indemnify, and hold DWS, its officers, directors, employees and shareholders harmless from any costs, expenses, fines, penalties or loss arising from its failure to comply with such applicable governmental laws and regulations.
16.6 The Client shall obtain and maintain at its own risk and expense from the appropriate authorities all permits and licenses necessary for the use of the DWS Services.
17.1 Any and all disputes arising out of or incidental to these General Terms & Conditions and/or the Agreement shall be governed by Australian Law (excluding International Private Law), without regard to its choice-of-law provisions.
17.2 Disputes shall be decided by mediation by the International Chamber of Commerce (ICC). The ICC will apply its own rules of procedure being in force when the application for mediation is submitted.
17.3 If a party objects to mediation, or if mediation does not result in a settlement, the dispute will be decided with final effect by ICC.
17.4 The ICC shall apply its own rules of procedure being in force when proceedings are commenced. The arbitration shall be held in Sydney, Australia, and the language of the proceedings shall be in English.
17.5 In the event of a dispute between the parties, the prevailing party shall be reimbursed in full by the other party for all expenses, including without limitation reasonable attorneys’ fees, incurred in enforcing the parties’ agreement.
17.6 The arbitration clause shall not restrict or prevent a Party from seeking any interlocutory remedies, including without limitation injunctive relief, available under current legislation.
17.7 The Parties are not entitled to disclose confidential information relating to the arbitration proceedings to any third party, including information on any decision or arbitration award, unless the other Party has consented in writing to each individual disclosure. However, either Party is entitled to disclose information relating to the arbitration proceedings to a third party if such disclosure is made to protect its interests in relation to the other Party or to comply with current legislation or public authority decisions, or if such disclosure is required under any listing agreements.
17.8 If any provision of General Terms & Conditions is or becomes voidable, invalid, illegal or unenforceable under the legislation of any jurisdiction, that will not affect or impair the validity, legality or enforceability of the reminder of these General Terms & Conditions in that jurisdiction and these General Terms & Conditions shall be read and construed and take effect for all purposes as if that provision were not contained in the Agreement.
18.1 DWS shall at its sole discretion be entitled to have the DWS Services in whole or in part performed by subcontractors unless otherwise stated in the Agreement. Further, DWS may assign any right or subcontract any obligation under these General Terms and Conditions to an affiliated company.
19.1 The Client may not assign the Agreement or its obligations hereunder to a third party nor to another group entity such as a subsidiary or a mother company without the prior written consent of DWS.
20.1 The Agreement and these General Terms & Conditions contain the entire agreement between the parties regarding the DWS Services, and all prior or contemporaneous agreements, understandings, representations and statements, oral or written, are merged herein.
21.1 No amendments of these General Terms & Conditions, or any waiver of any provision, shall be effective unless the amendment or waiver is made in writing and signed by the Client and DWS.
22.1 The provisions of these General Terms & Conditions shall not be construed more strictly against one party than against the other merely by virtue of the fact that they may have been prepared primarily by one of the parties.