Standard Terms and Conditions of Business
1. Introduction
These are the Standard Terms and Conditions to which you agree when you sign a MANAGILITY Client Work Order (CWO) containing the words “Standard Terms and Conditions Apply”,except when you have already signed an agreement with MANAGILITY containing other terms and conditions that shall apply to your CWO.
Agreement
The following definitions are used in this Agreement:
MANAGILITY
means MANAGILITY Pty. Ltd. (ABN 47 106 084 413) a company having its registered office at: Suite Australian Technology Park Suite 145 Cornwallis St, Eveleigh NSW 2015 Australia.
Client
means the organisation or other party that has indicated acceptance of these conditions by signing a CWO without signing an alternative agreement with MANAGILITY.
CWO
means Client Work Order. A signed CWO is an order from a Client for MANAGILITY to supply particular Services and/or Deliverables at agreed prices, subject to the terms and conditions contained in this (or an alternative) Agreement.
Proposal
means any document in which MANAGILITY offers to provide the Client with professional Services and/or other Deliverables.
Particulars
means a description in the Proposal (as defined above) of the particular Services and/or Deliverables that the Client wishes MANAGILITY to provide.
Licensed Software
means any software that is licensed to the client; this includes standard products and code that is developed individually for the client. The intellectual poperty of the solutions remains the property of MANAGILITY or other respective, original suppliers. The Client is licensed to use the software but not to make it available for use by any third party. A software license agreement is invariably required which cannot be and is not intended to be subordinate to any of the terms and conditions of this Agreement.
MANAGILITY is an authorised distributor of some Licensed Software products.
Intellectual Property
means all present and future intellectual and industrial property rights, including copyright, trade marks, patents, designs, circuit layouts, know how and the right to have any confidential information of a party kept confidential.
Systems Integration
means to create joins or links between Application Software and/or Licensed Software and/or equipment and/or communications technologies to establish a business system. The supply of Systems Integration Services is core business for MANAGILITY.
Documentation
means information that MANAGILITY may provide as part of the Deliverables and which may be provided either in printed form or in an electronic form, for example as “On Line Help”.
Deliverables
means, but is not limited to, Application Software, Systems Integration and/or Documentation. A description of the Deliverables is typically contained in a MANAGILITY Proposal.
Services
means the professional services provided by MANAGILITY for the purpose of producing the Deliverables.
Client Requirements
means any statement of what the Client requires MANAGILITY to achieve by supplying the Services. This statement may range from a brief and high level statement of “user requirements“ to a detailed “functional specification”. Either or both documents may exist before a CWO is signed, or may be developed as Deliverables of a MANAGILITY assignment.
Acceptance Test
means the third phase of testing, the first being “unit test” and the second being “systems test”. An Acceptance Test is a test conducted by the Client to establish that an assignment has been completed. A statement of the criteria that shall be applied by both Datum and the Client for this purpose is usually contained in a Client Requirements statement and always in a functional specification.
2.Scope of Agreement
On receipt of a signed CWO, MANAGILITY shall provide the Client with the Services and Deliverables to which the CWO refers.
3.Terms of Agreement
This agreement is for the duration of the assignment for which a CWO has been signed, includes the warranty period as defined in Section 6 and will continue in effect until terminated herein.
4.Services
4.1. MANAGILITY shall perform the Services with all reasonable care and skill in accordance with the terms and conditions of this Agreement.
4.2. MANAGILITY shall at its sole option provide the Services in the form of:
4.2.1. telephone advice;
4.2.2. error correction by electronic communication such as by modem or via the Internet.
4.2.3. on site attendance as MANAGILITY considers necessary; and
such Services as MANAGILITY considers are more effectively provided off site.
4.3. MANAGILITY reserves the right to use personnel who are not employees of MANAGILITY where MANAGILITY considers it necessary. MANAGILITY shall ensure that all personnel involved in performing the Services possess appropriate skills and experience.
4.4. MANAGILITY shall endeavour to retain continuity of personnel during the period that the Services are to be provided in accordance with the terms of this Agreement, but absences due to holidays, training, external meetings, illness or any other cause may result in non-attendance and MANAGILITY will attempt to replace any personnel so removed with personnel of equivalent skills and experience.
4.5. MANAGILITY shall use all reasonable endeavours to provide the Services and Deliverables by the dates and at the costs set forth in the Proposal, however, both parties acknowledge that the dates and costs are to be treated as estimates only. unless a fixed price and/or a firm completion date have been specifically offered in the Proposal.
5.Acceptance
5.1. Where applicable, either before or as soon as reasonably practicable following commencement of the Services, MANAGILITY shall agree with the Client an Acceptance Test for the Deliverables. The same shall be constructed and run so as to demonstrate the Deliverables substantially conform to the Client Requirements or any agreed variations thereto.
5.2. The Acceptance Test should commence not more than fourteen (14) days after MANAGILITY have supplied the Client with the Deliverables and notified the Client of this event. The Client will make available without charge all staff, materials and facilities identified by MANAGILITY as necessary for carrying out the Acceptance Test.
5.3. Each party shall have available suitably qualified and authorised personnel to witness the running of the Acceptance Test and should any part of the Deliverables fail the Acceptance Test then MANAGILITY shall be allowed a reasonable time to carry out further work on the affected part of the Deliverables as is required by MANAGILITY and to repeat the relevant part of the Acceptance Test. Should MANAGILITY determine its inability to rectify the defective part of the Deliverables then MANAGILITY may terminate this Agreement by notice in writing to the Client.
In the event of such termination the Client shall immediately remove all copies of the Deliverables from its equipment and/or premises and return all copies of related Documentation to MANAGILITY and MANAGILITY shall repay to the Client in full and final settlement, all sums previously paid by the Client to MANAGILITY.
5.4. The Acceptance Test shall be regarded as having been successfully completed on the earliest of the following events:
5.4.1. the next working day after MANAGILITY notifies the Client of successful completion of the Acceptance Test unless the Client has provided MANAGILITY with written details of any material failure of the Deliverables.
5.4.2. within seven (7) days after MANAGILITY notifies the Client of successful completion of the Acceptance Test unless within such seven (7) days the Client has demonstrated to the reasonable satisfaction of MANAGILITY, the material failure of the Deliverables which the Client has previously notified to MANAGILITY under Clause 5.4.1 hereof;
5.4.3. the next working day after MANAGILITY notifies the Client of completion of the Acceptance Test where the failure of the Deliverables was solely attributable to the defective functioning of any computer hardware, software, or other item not supplied by MANAGILITY here under; or
5.4.4. when the Client first put any part of the Deliverables into operation or use.
5.5. Upon the Deliverables having successfully completed the Acceptance Test pursuant to Clause 5.4 and the Client having paid to MANAGILITY all sums due under this Agreement, MANAGILITY hereby grants to the Client a non-exclusive, non-transferable licence to use the Deliverables for the Client’s own internal use.
5.6. This Agreement does not transfer to the Client any rights in the Deliverables, except the License granted to the Client under clause 5.5. Without limiting the above, any Intellectual Property belonging to or developed by MANAGILITY (including its employees, consultants, contractors, subcontractors or agents), including the provision of the Services and Deliverables is owned exclusively by MANAGILITY (or MANAGILITY’s consultants, contractors, subcontractors or agents as the case may be).
6. Warranty
6.1. MANAGILITY warrants that any Deliverables will substantially conform with the Client Requirements or any agreed written variations thereto. MANAGILITY will use all reasonable endeavours to remedy, free of charge, any material defects appearing in such Deliverables providing the following conditions are met;
6.1.1. the defect is reported to MANAGILITY in writing within ninety (90) days of the successful completion of the acceptance program;
6.1.2. the defect has arisen from proper use in accordance with all Documentation supplied and procedures communicated by MANAGILITY to the Client;
6.1.3. the defect is attributable to faulty workmanship or design by MANAGILITY; and
6.1.4. the Client provides MANAGILITY with all facilities and information reasonably required by MANAGILITY for the duplication, investigation and remedying of the defect.
6.2. MANAGILITY reserves the right to charge the Client its normal commercial rates for correction of any defect in the Deliverables should that defect have been patently discoverable on the running on the Acceptance Test or should events transpire that the defect resulted from a cause not attributable to MANAGILITY.
6.3. MANAGILITY shall have no obligation to correct any defect in the Deliverables which arises from any unauthorised modification to the Deliverables or from any alteration to or of the Client’s standard operating environment which have not been approved by MANAGILITY.
6.4. Any other Licensed Software which MANAGILITY may supply to the Client under the terms of this Agreement will be supplied on an “as is” basis, and the obligation of MANAGILITY is limited to making available the benefit of any warranty provided to MANAGILITY by the original supplier of that software.
6.5. The maximum aggregate liability of MANAGILITY for breach of the obligations of MANAGILITY in respect to the supply of the Deliverables shall in no circumstances be greater than the total fees paid by the Client for the defective part of the Deliverables.
7. Liability of MANAGILITY
7.1. Except as expressly provided to the contrary in this Agreement, MANAGILITY shall not be under any liability to the Client in respect of any loss or damage (including consequential loss or damage) howsoever caused, which may be suffered or incurred or which may arise directly or indirectly in respect of the supply of goods or services pursuant to this Agreement or the failure or omission on the part of MANAGILITY to comply with its obligations under this Agreement.
7.2. Except as expressly provided to the contrary this Agreement, all warranties whether express, implied, statutory or otherwise, relating in any way to the subject matter of this Agreement or to this Agreement generally are excluded. Where any act of Parliament implies in this Agreement any term and that Act avoids or prohibits provisions in a Contract excluding or modifying the application of or exercise of or liability under such term, such term shall be deemed to be included in this Agreement.
7.3. The liability of MANAGILITY for any breach of any such terms shall if permitted by that Act be limited, at the option of MANAGILITY, to any one or more of the following:
7.3.1. if the breach relates to goods;
a. the replacement of the goods or the supply of equivalent goods;
b. the repair of such goods;
c. the payment of the costs of replacing the goods or of acquiring equivalent goods; or
d. the payment of the cost of having the goods repaired; and
7.3.2. if the breach relates to Services;
a. the supplying of the Services again;
b. the payment of the cost of having the Services supplied again.
7.4. Notwithstanding anything contained within this Agreement the maximum aggregate liability for breach of obligation under the terms of this Agreement by MANAGILITY with respect to the provision of the Services shall in no circumstances be greater than the total charges paid by the Client for the part of the Services referable to any breach of the obligations of MANAGILITY pursuant to the terms of this Agreement.
7.5. The Client warrants that it has not relied on any representation made by MANAGILITY which has not been stated expressly in this Agreement or upon any descriptions or specifications contained in any document including catalogues or publicity material produced by MANAGILITY other than those contained in MANAGILITY’s written Proposal for the particular assignment for which a CWO is signed, and in the event that there is any conflict between any representations, terms and conditions contained in that Proposal with those contained in this Agreement, then the terms and conditions contained in this Agreement shall prevail.
8. Exclusions
MANAGILITY shall not be responsible for rectifying inadequacies of other third parties. The Services to be provided by MANAGILITY under this Agreement do not include:
8.1. Correction of errors or defects caused by other people, such as errors or defects:
8.1.1. caused by operating Licensed Software in a manner other than as specified by the Licensor.
8.1.2. caused by unauthorised modification, revision, variation, translation or alteration of Licensed Software.
8.1.3. caused by unauthorised use of Licensed Software, with particular reference to corruption and/or deletion of software and/or data in the Client’s computer systems resulting from “hacking” or any other form of unauthorised intervention.
8.1.4. caused by the Client experiencing a “virus infection” in its computer environment.
8.1.5. caused in whole or in part by the use of unlicensed software.
8.1.6. caused by the failure of the Client to provide suitably qualified and adequately trained operating and programming staff for the operation of Licensed Software.
8.1.7. arising directly or indirectly out of the Client’s failure to comply with this Agreement or any software license agreement.
8.1.8. which are the subject of a warranty under another agreement.
8.2. The following Services will be provided by MANAGILITY if they are listed in the Particulars for an assignment but are otherwise excluded except where the Client and MANAGILITY exercise the option described in Section 9 of this Agreement.
8.2.1. Training of the Client’s computer operating or programming staff.
8.2.2. Rectification of outcomes resulting from Client operating errors, incorrect use of Licensed Software and/or faults in computer and/or communications equipment,
8.2.3. Computer and/or communications equipment maintenance.
8.2.4. Diagnosis and rectification of faults not associated with Licensed Software or MANAGILITY Deliverables.
8.2.5. Provision of new releases of Licensed Software including but not limited to new versions, upgrades, enhancements and functional changes, where the Client does not have a current Licensed Software maintenance agreement.
8.2.6. Furnishing or maintenance of accessories, attachments, supplies, consumables or associated items, whether or not manufactured or distributed by MANAGILITY.
9. Additional Services
At the Client’s request, MANAGILITY may at its sole option provide Services to rectify the outcomes of any of the problems listed in Clause 8 in which case MANAGILITY shall be entitled to make an additional charge for providing these Services.
10. Charges and Payment
10.1. The Client shall pay MANAGILITY for the Services and/or Deliverables provided.
10.2. Payment
10.2.1. Payment shall be made upon receipt of an invoice from MANAGILITY in accordance with the rate and in the manner specified in the Proposal and payment in full shall be due from the Client within seven (7) days of the invoice date.
10.2.2. The Client shall be in breach of this Agreement if it fails to make any payment within seven (7) days of the due date herein.
10.2.3. Should any payment be owing to MANAGILITY by the Client and the same is not made within seven days of the due date, MANAGILITY may without further notice to the Client:
c. suspend further Services or its remaining obligations to the Client under this Agreement or any other agreement or Proposal relating to the Services herein; and
d. enter any premises owned, occupied, leased or controlled by the Client in order to repossess any software or any other related materials, documentation, tools or equipment which are the property of MANAGILITY.
10.3. To the extent that the charges of MANAGILITY are to be on the basis of time spent, such time shall be calculated by multiplying the total time so spent by each person on providing the Services by the rate applicable to that person (and pro-rated fractions of this rate for parts of a day). The Client acknowledges that where daily rate are quoted such rates are based on a standard 8 hour working day.
10.4. MANAGILITY shall give the Client thirty (30) days notice of any increase in daily rates, charged or to be charged by MANAGILITY for the Services.
10.5. MANAGILITY may, at its descretion, in addition to the basic rate specified herein recover rates charged at overtime rates should Services be required to be performed outside normal business hours. The Client acknowledges that MANAGILITY shall not work public holidays or other holiday days or days off which are generally accepted as public holidays without a special arrangement with MANAGILITY. MANAGILITY overtime rates shall be calculated at the rate of 200% of current standard rates for any public holiday and/or weekend work, and for week days additional hours in excess of 8 hours per day at a rate of 150% of the daily rates of MANAGILITY.
10.6. MANAGILITY shall in addition to the basic rate specified recover in full the direct cost of:
10.6.1. consumable materials used by MANAGILITY;
10.6.2. travelling expenses incurred by MANAGILITY, its employees or consultants;
10.6.3. overtime by MANAGILITY, its employees or consultants; and
10.6.4. any other disbursements which MANAGILITY reasonably considers necessary to enable it to properly and effectively discharge its obligations under this Agreement.
10.7. All fees and charges payable by the Client under this Agreement are exclusive of any taxes, duties, fees or other Government levies or charges which may be imposed on or in respect of the Proposal, the Services or any other Licensed Software its use or its maintenance under this Agreement. Such taxes, duties, fees or other Government Charges shall to the extent permissible by Law be paid by the Client immediately they become due and in any event not later than seven (7) days after notice in writing by MANAGILITY requiring such payment. The Client shall fully indemnify MANAGILITY against all payments made by MANAGILITY which are the Client’s responsibility under this Clause.
10.8. GST
10.8.1. Definitions:
“GST” means GST within the meaning of the GST Act;
“GST Act” means the A New Tax System (Goods and Services Tax) Act 1999 as amended.
“Input Tax Credit” in relation to a supply, means a credit under the GST Act for the GST payable by the recipient in respect of the supply.
“Price” means the rates, fees and amounts payable for the provision of the professional services and, unless the contrary intention appears, is expressed as a GST inclusive amount for the provision of the professional services.
“Tax Invoice” in relation to a supply, means an invoice for the supply required by the GST Act to support a claim by the recipient for an Input Tax Credit for the GST on the supply.
10.8.2. GST inclusive price of taxable supply of professional services under agreement.
Notwithstanding any other provision of this agreement but subject to clauses 10.8.3 and 10.8.4 herein, to the extent that the Company makes a taxable supply in connection with the provision of professional services only under this agreement, the consideration payable by the Client under this agreement, represents the GST inclusive value of the taxable supply for which payment is to be made.
10.8.3. Reimbursement of expenses in which Input Tax Credit available
If this agreement requires a party to pay for, reimburse or contribute to any expense or liability (“reimbursable expense”) incurred by the other party (“payee”) to a third party, the amount to be paid, reimbursed or contributed will be the amount of the reimbursable expense including any input tax credit.
10.8.4. Consideration other than for professional services, exclusive of GST
Except where express provision is made to the contrary
(such as in respect of the price of professional services or a reimbursable expense), the consideration or amount payable by a party for a taxable supply made by the other party under this agreement represents the value of the taxable supply for which payment is to be made.
10.8.5. Payment of GST
Subject to clause 10.8.6, if a party makes a taxable supply under this agreement for a consideration which represents the net expense by virtue of clause 10.8.3 or its value by virtue of clause 10.8.4, then the party liable to pay for the taxable supply must also pay, at the same time and in the same manner as the net expense or value otherwise payable, the amount of any GST payable in respect of the taxable supply.
10.8.6. Supplier to provide Tax Invoice
A party’s right to payment, under this agreement including sub-clauses 10.8.3 or 10.8.4, arises and is subject to a valid tax invoice being delivered to the party liable to pay for the taxable supply.
10.8.7. Warranty
The parties warrant that they are registered or required to be registered under the GST Act.
11. Client Responsibilities
11.1. If the client has agreed specified commencement or attendance dates for MANAGILITY staff, the client shall notify by telephone MANAGILITY a minimum of 1 week prior to that agreed commencement or attendance date, should the client be unable to utilse the consultant on those dates. Furthermore, on notifying MANAGILITY the client shall also notify an alternative commencement or attendance date. Where the client does not notify MANAGILITY a minimum of 72 hours prior to the commencment or attendance date, the client shall pay, at the sole discretion of MANAGILITY, the equivilent of 4 hours at the respective rate for the MANAGILITY consultant assigned to the client. If agreed consulting services are cancelled less than 24 hours before commencement the full daily rate will be charged.
11.2. The Client shall where appropriate and relevant ensure that MANAGILITY personnel have full and safe access to any software and designated equipment at all reasonable times for the purpose of providing the Services herein. The Client shall also ensure that MANAGILITY personnel are provided with all information, facilities, Services and accessories reasonably required by MANAGILITY to enable MANAGILITY to comply with its obligations under this Agreement including that for any Services performed on the premises of the Client the Client shall provide proper office accommodation and Services (including, telephone, facsimile, internet access, printing and photocopying and a secure place in which to store any sensitive materials). Any such accommodation and Services will be provided by the Client free of charge and will be conveniently located for the purposes of performance of the Services.
11.3. The Client shall where relevant provide on request a suitably qualified or informed representative, agent or employee to accompany personnel and to advise MANAGILITY personnel on access or on any other matter within the Client’s knowledge or control which will assist MANAGILITY in complying with its obligations under this Agreement.
11.4. To the extent that the Services comprise or involve the secondment of MANAGILITY personnel, such personnel shall be subject to the direction of the management and control of the Client, and the Client shall carry full responsibility for the tasks they perform and the manner and way in which they perform them.
11.5. No personnel seconded pursuant to clause 11.4 hereof shall become the employee of the Client for salary PAYE or any other insurance, superannuation or workers compensation insurance purposes.
11.6. To the extent that the Services involve training of the Client’s personnel:
11.6.1. the Client will be responsible for all out of pocket expenses incurred by those who attend any course;
11.6.2. MANAGILITY reserves the right to exclude any person who’s attendance would not be conducive to the successful running of the course;
11.6.3. non-attendance by any person will not entitle the Client to any reduction or refund of fees;
11.6.4. any training materials provided by MANAGILITY shall be solely for the Client’s internal use and the Client shall not provide any training to third parties which make use of any such material provided by MANAGILITY nor shall the Client make copies of any such materials without the prior written consent of MANAGILITY.
11.7. The Client shall promptly provide MANAGILITY with all information required by MANAGILITY from time to time to facilitate proper and timely discharge of the obligations of MANAGILITY under the terms of this Agreement together with all approvals and decisions necessary to allow the unhindered progress of the Services.
11.8. The Client warrants that all information provided by the Client to MANAGILITY is accurate in all material respects and that the Client is entitled to provide it to MANAGILITY for the use of MANAGILITY without recourse to any third party.
11.9. The Client acknowledges the responsibility of the Client to satisfy themselves that the Services and the Deliverables meet the particular requirements of the Client.
11.10. To the extent that the Deliverables include a facility to enable the user to interface with third party software the Client undertakes, at its sole cost, to obtain all licences, permissions and consents from third parties that are necessary to ensure that the use of such a facility will not infringe on any rights and shall be and remain lawful in all respects.
Furthermore, the Client shall indemnify MANAGILITY from and against any loss, damage, liability and expense which MANAGILITY may suffer or incur as a result of any breach by the Client of such undertaking.
12. Variation
12.1. At any time before MANAGILITY have completed provision of the Services the Client may request or MANAGILITY may recommend a written variation to the Services setting out the details of the proposed variation.
12.2. In the case of the Client requesting a variation, MANAGILITY will assess the likely impact in terms of cost and time scales and notify the Client. The Client may then instruct MANAGILITY in writing to execute the variation at which point MANAGILITY aforementioned investigations and assessments will duly vary this Agreement and become part of it.
12.3. MANAGILITY may charge for all incidental costs and expenses incurred in making any investigation or assessment under Clause 12.2 of this Variation Clause whether or not a variation is subsequently implemented.
13. Confidentiality
Each party will keep confidential and not disclose to any third party any information of a confidential nature received from the other party which relates to the business or methods of operating of that party and shall keep all such information secure and protected against theft, damage, loss or unauthorised access and will not use such information except for the purposes (if any) for which it was disclosed. The obligations set forth herein shall cease to apply to any information that comes into the public domain through no fault of the recipient.
14. General Liability
14.1. The terms of this Agreement set forth the full extent of the obligations of MANAGILITY and liability with respect to the provision of the Services to the Client and there are no warranties, conditions, or other terms in this regard that are binding on MANAGILITY except as specifically stated herein. The Client acknowledges in particular, that any condition, warranty or other term concerning the provision of the Services which might otherwise be implied into or incorporated within this Agreement or any collateral agreement or contract, whether by statute, common law, or otherwise, is hereby excluded.
14.2. In no event shall MANAGILITY have any liability for any indirect consequential or special damages howsoever arising, including without limitation, loss of revenue, profits, or failure to make anticipated savings.
15. Termination
Either party may immediately terminate this Agreement by notice in writing to the other if:
15.1. the other is in a material breach of any of its obligations under this Agreement which it has failed to remedy within thirty (30) days of written notice requiring it to do so; or
15.2. if the other commits an act of bankruptcy, goes or is put into Receivership or Liquidation, passes a resolution for its winding up, (otherwise than for the purposes of reconstruction or amalgamation) or makes any arrangement for the benefit of its creditors or takes or suffers any similar action in consequence of debt.
15.3. MANAGILITY may also terminate the Agreement under Clause 5.3 or 17.2.
15.4. MANAGILITY may terminate the Agreement immediately by notice in writing to the Client if the Client challenges the ownership or validity of the proprietary rights in the Licensed and/or Application software, any related items or any of MANAGILITY’s other software products.
16. Non Solicitation
During the time the Services are being provided nor for a period of twelve months after their completion, the Client will not recruit or attempt to recruit any staff, independent contractors or consultants under contract with MANAGILITY who have either worked on or in some material way been involved in the Services. Should the Client be in breach of this Clause then the Client shall pay to MANAGILITY the equivalent of sixty (60) person days work at MANAGILITY’s current standard charge rate for the person so recruited and calculated at the time the person leaves the employment of MANAGILITY.
17. General
17.1. Neither party shall be liable to the other for any delay or failure to meet any respective obligation (other than payment obligations) under the terms of this Agreement due to any cause or circumstance beyond the reasonable control of the other or which ever owes the obligation in question.
17.2. The invalidity or unenforceability of any part of the terms of this Agreement shall not effect the validity or enforceability of the remaining terms of this Agreement, however, should any part of the terms and conditions of this Agreement be held to be invalid or unenforceable by any Court or other authority of competent jurisdiction then MANAGILITY shall have the right to terminate this Agreement within ninety (90) days of being so advised by not less than thirty (30) days prior written notice to the Client.
17.3. These terms and conditions comprise the complete and exclusive statement of the Agreement between the parties and supersede all prior agreements, oral or written, and all other communications between the parties concerning the subject matter of this Agreement. The Client acknowledges that no reliance is placed upon any representation made by MANAGILITY which is not embodied in these conditions of Agreement.
17.4. Notices
17.4.1. Notices under this Agreement shall be in writing and shall be delivered by hand, mail, facsimile or electronic mail to the address as specified in the proposal.
17.4.2. Notices will be deemed as received:
1. in the case of hand delivery upon written acknowledgment of receipt;
2. in the case of posting, three days after dispatch;
3. in the case of facsimile or electronic mail, upon completion of transmission;
17.5. This Agreement may only be modified by written agreement signed by one of the directors of MANAGILITY and one of the authorised signatories of the Client.
17.6. No right under this Agreement shall be deemed to be waived except by notice in writing signed by MANAGILITY. Such a waiver signed by MANAGILITY shall not prejudice its rights in respect of any subsequent breach of this Agreement by the Client.
17.7. Any failure by MANAGILITY to enforce any clause of this Agreement, or any forbearance, delay or indulgence granted by MANAGILITY to the Client, will not be construed as a waiver of the rights of MANAGILITY under this Agreement.
17.8. Headings used in this Agreement are for convenience and ease of reference only and are not part of this Agreement and shall not be relevant to or effect the meaning or interpretation of this Agreement.
17.9. In this Agreement, unless the context otherwise requires, words importing the singular include the plural and vice versa and words of one gender include all other genders
17.10. The construction, validity and performance of the terms of this agreement shall be governed by the laws of NSW and each party herein agrees to submit to the exclusive jurisdiction of the Courts of the State of NSW to resolve any dispute that may arise
18. Execution
No signature on this document is required.
This Agreement becomes effective when you provide MANAGILITY with a signed CWO containing the words “Standard Terms and Conditions Apply”, unless you already have an alternative agreement with MANAGILITY.