This Agreement is entered into between us and you, together the Parties and each a Party.

1. Deliverables: We agree to provide the Deliverables to you on these terms and conditions whether ourselves or through our Personnel. We will use reasonable endeavours to provide the Deliverables by such time as agreed between the Parties. Additional Deliverables may be provided upon request, subject to mutual agreement on scope, fees, and terms.

2. Software access: In addition to providing the Deliverables to you, we may also provide access to our Software. If applicable, the terms governing the use of the Software will be separately agreed between the Parties.

3. Variations: All variations to the Deliverables must be agreed in writing between the Parties and will be priced in accordance with any schedule of rates provided by us, or otherwise as reasonably agreed between the Parties. If we consider that any instruction or direction from you constitutes a variation to the scope of our obligations under this Agreement, then we will not be obliged to comply with such instruction or direction unless agreed in accordance with this clause.

4. Fees and Payment Terms: You agree to pay the Fees according to the Payment Terms.

5. Late payments: If you don’t pay on time as agreed, we can choose to stop working on the Deliverables 5 business days after the payment was due.

6. Client obligations: You agree to provide us and our team with safe access to the premises and necessary facilities at agreed times for service delivery, along with all necessary documents, information, and cooperation.

7. Intellectual Property: As between the Parties:
(a) we own all Intellectual Property Rights in Our Materials;
(b) you own all Intellectual Property Rights in Your Materials; and
(c)  nothing in this Agreement constitutes a transfer or assignment of any Intellectual Property Rights in Our Materials or Your Materials.
As between the Parties, ownership of all Intellectual Property Rights in the Deliverables will, after payment by you in full of the Fees relevant to those Deliverables, vest in you.

8. Data: All Data you provide remains your property. We may access Data as necessary to provide Deliverables or as required by law.

9. Termination: The Parties may terminate this Agreement by mutual agreement. This Agreement can be terminated by either Party (the Non-Defaulting Party) with immediate effect if the other Party (the Defaulting Party) fails to fulfil a significant obligation under this Agreement. If the Defaulting Party does not correct the breach within 10 business days after receiving written notice from the Non-Defaulting Party, the Non-Defaulting Party has the right to terminate the Agreement immediately.
‍Effect of Termination: If this Agreement is terminated, you will receive all completed and partially completed Deliverables for which you have paid, based on the pro-rata portion of work completed.

10. Warranties and representations: Both Parties warrant their legal capacity and authority to enter this Agreement. You warrant that all information and documentation provided to us is true, correct, and complete and that you are not currently subject to an insolvency event or likely to become insolvent.

11. Liability: We will provide our Deliverables with reasonable care and skill. However, we are not liable for any indirect or consequential losses that may arise. Subject to your consumer law rights, our total liability under this Agreement and conditions is limited to the Fees paid by you.

12. Confidentiality: Both Parties commit to maintaining the confidentiality of any proprietary or confidential information.

13. Privacy: Each Party agrees to comply with the legal requirements of the Australian Privacy Principles as set out in the Privacy Act 1988 (Cth) and any other applicable legislation or privacy guidelines.

14. GST: When applicable, GST payable will be clearly shown on our invoices. You agree to pay us an amount equivalent to the GST imposed on these charges. “GST” has the meaning given in A New Tax System (Goods and Services Tax) Act 1999 (Cth).

15. Subcontracting: We reserve the right to subcontract any portion of the Deliverables  at our discretion without needing to get your written approval beforehand. We commit to being fully responsible for fulfilling our obligations under this Agreement, and we will ensure that any subcontractors we employ will adhere to the terms of this Agreement as if we were performing the Deliverables directly.

16. Relationship of Parties: This Agreement is not intended to create a partnership, joint venture, employment or agency relationship between the Parties.

17. Force Majeure: Neither Party will be liable for any delay or failure to perform their respective obligations under these Terms if such delay or failure is caused or contributed to by a Force Majeure Event. This clause will not apply to a Party’s obligation to pay any amount that is due and payable to the other Party under these Terms.

18. Amendments: Both Parties must sign any changes or modifications to this Agreement in writing.

19. Counterparts: This Agreement may be executed in any number of counterparts that together will form one instrument.  

20. Disputes: A Party may not commence court proceedings relating to any dispute arising from, or in connection with, this Agreement (Dispute) without first meeting are presentative of the other Party within 10 Business Days of notifying that other Party of the Dispute. If the Parties cannot resolve the Dispute at that meeting, either Party may refer the Dispute to mediation administered by the Australian Disputes Centre.

21. Governing Law: This Agreement is governed by the laws of the State of Victoria, Australia.

22. Definitions:
(a) Commencement Date means the earlier of the date this Agreement is signed by the last of the Parties, or the date you instruct us (whether orally or in writing) to proceed with service delivery.
(b) Data means the information, logos, documents and other data provided by you or your Personnel in order for us to provide the Deliverables.
(c) Deliverables means the deliverables set out in the Schedule and includes all Intellectual Property developed, adapted, modified or created by or on behalf of us or any of our respective Personnel under this Agreement.  It includes any improvements, modifications or enhancements of such Intellectual Property but excludes Our Materials and Your Materials.
(d) Fees means the Fees set out in the Schedule or otherwise set out in a schedule of rates provided by us.
(e) Force Majeure Event means any event or circumstance which is beyond a Party’s reasonable control including but not limited to, acts of God including fire, hurricane, typhoon, earthquake, landslide, tsunami, mudslide or other catastrophic natural disaster, civil riot, civil rebellion, revolution, terrorism, insurrection, militarily usurped power, act of sabotage, act of a public enemy, war (whether declared or not) or other like hostilities, ionising radiation, contamination by radio activity, nuclear, chemical or biological contamination, any widespread illness, quarantine or government sanctioned ordinance or shutdown, pandemic (including COVID-19 and any variations or mutations to this disease or illness) or epidemic.
(f) Intellectual Property Rights or Intellectual Property means any and all existing and future rights throughout the world conferred by statute, common law, equity or any corresponding law in relation to any copyright, designs, patents or trade marks, domain names, know-how, inventions, processes, trade secrets or confidential information, circuit layouts, software, computer programs, databases or source codes, including any application, or right to apply, for registration of, and any improvements, enhancements or modifications of, the foregoing, whether or not registered or registrable.
(g) Our Materials means all Intellectual Property which is owned by or licensed to us including the Software and any improvements, modifications or enhancements of such Intellectual Property, but excludes the Deliverables and Your Materials.
(h) Payment Terms means the terms for the payment of the Fees as set out in the Schedule.
(i) Personnel means, in respect of a Party, any of its employees, consultants, suppliers, subcontractors or agents, but in respect of you, does not include us.
(j) Software means the software developed and created by us, known as "Highlighter", which may be the subject of the Services or provided separately, and includes any instructions in hardcopy or electronic form, as well as any update, modification or release of any part of Highlighter after this Agreement is entered into by the Parties.
(k) Support Services means, if applicable, the Services set out in the Schedule.
(l) Term means the period set out in the Schedule.
(m) Your Materials means all Intellectual Property owned or licensed by you or your Personnel before the Commencement Date and/or developed by or on behalf of you or your Personnel independently of this Agreement and any improvements, modifications or enhancements of such Intellectual Property, but excludes Our Materials and the Deliverables.

For any questions and notices, please contact us at:
Silverpond Pty Ltd ACN 113 439 437
Email: legal@silverpond.com.au
Last update: 25 October 2024