
Standard Terms & Conditions
Digital Water Solutions Pty Ltd.
1. General Provisions
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. DWS Services
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. Access to information,
assistance, equipment and facilities
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. Rentals and Outlays
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. Prices
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. Payment
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. Intellectual Property
Rights
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. Confidentiality
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. Force Majeure
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. Variations
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. Suspensions, Postponements and
Delays
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. Indemnification
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. Limitation of liability
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. Insurance
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. Termination
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. Anti-corruption and trade control
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. Disputes
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. Subcontractors
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. Assignment
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. Entire Agreement
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. Amendments
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. Construction of Agreement
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.