Customer Terms of Business
Version: 12 September 2017
It is agreed as follows.
1.1. “Incite” means Incite Energy Pty Ltd.
1.2. “GST Act” means A New Tax System (Goods and Services Tax 1999 (Cth) as amended.
1.3. “GST, Supply, Taxable Supply, Registered and Tax Invoice” has the same meaning as in the GST Act.
1.4. “Price” means the total fees and rates set out in “The Offer”.
1.5.“Purchase Order” means an order or request, whether oral or written, made by You to Incite, under these Customer Terms of Business.
1.6. “Services” means service described in “The Offer”.
1.7. “Tax” includes any and all personal, company, gains, duties, value added, consumption, corporations, capital, stamp, gross, income withholdings, levies, or other changes of any nature whatsoever or whenever, together with any penalties, fines or interest imposed or levied or assessed by any government, governmental or semi-government or other relevant authority or otherwise payable on or irrespective of the Service but exclusive of GST.
1.8. “The Offer” any written price or services quoted by Incite.
1.9. “You” and “Your” means the organization, individual or partnership to whom Incite performs work for.
1.10. “Your Staff” means Your employees, agents, Customers and sub-Customers (and employees, agents and Customers of those Customers and sub-Customers).
1.11. “Us” and “We” means You and Incite
1.12. “Writing” includes typewriting, printing, lithography, photography and any other mode of representing or reproducing words in a permanent and visible form.
2.1. This Contract, read with any other documents attached to or referred to (together, “the Contract”), comprises the entire agreement between the parties. No amendment to the Contract is valid unless it is reduced to writing and signed by both parties.
2.2. If there is any difference or conflict between the Contract and any other document, then to the extent of the inconsistency, the terms of the following will prevail in order of precedence:
(i) this Contract; and
(ii) any other document.
2.3. “Incite client(s)” or “Incite’s client(s)”, means any client or clients (as the case may be) of Incite (or any related or affiliated company of Incite).
2.4. The Contract supersedes and replaces any previous verbal or written Contract between the parties.
3. Agreement to Supply
3.1. Incite will perform Services as specified in each Purchase Order in accordance with these Customer Terms of Business.
4. Formation of a Contract
4.1.1. Incite provides “You” with a written quotation, estimated hours or offer to supply.
4.1.2. Incite’s offer has a validity period, if none identified in “The Offer” it will be assumed to be 90 days from date of “The Offer”;
4.1.3. You accept this offer either verbally or in writing; or
4.1.4. You place a Purchase Order with Incite as a result of “The Offer”
a binding contract is deemed to have been formed between Us on the basis of these Terms of Business.
4.2.1. You have made a verbal enquiry with Incite; and
4.2.2.You accept the offer verbally or in writing; or
4.2.3.You place a Purchase Order with Incite as a result of that verbal enquiry,
The Purchase Order constitutes an offer to purchase and upon acceptance by Incite, a binding contract is deemed to have been formed between Us on the basis of these Customer’s Terms of Business.
4.3. For purposes of clause 4.2, Incite are deemed to have accepted Your offer to purchase under clause 4.2:
4.3.1.As soon as Incite allocate the resources for the provision of the Services against the Purchase Order;
4.3.2.Or communicate with You, the content of which confirms or implies acceptance.
5. Contract Documents
5.1. The Contract between Us consists of
5.2. Incite’s offer to You;
5.2.1.Any Purchase Order received from You;
5.2.2.These Customer Terms of Business; and
5.2.3.if there is any inconsistency between these documents, they will be read in the order of priority as set out above.
5.3. No others conditions sought to be imposed by You, either verbally or in writing, prior to or subsequent to the placing of the Acceptance of the Purchase Order by Incite apply unless and until specifically accepted in writing by an authorised officer of Incite.
5.4. Incite considers any provision that conflicts with these Customer Terms of Business contained in any prior or subsequent order or communication from You to be material and rejects all such provisions.
6.1. Incite agrees to perform the Services in accordance with
6.1.1. Any specifications, or description provided or referenced in a Purchase Order or Incite’s Offer; and
6.1.2. Any relevant Australian standards, laws and regulations.
6.2. Incite will provide the Services in a proper manner, exercising due diligence and skill and to a high standard for the professional services in question. The Services will be performed in accordance with the requirements of and to the satisfaction of, You (acting reasonably), as well as the satisfaction of Your client (acting reasonable).
6.3. In providing the Services, Incite will specifically comply with the following:
6.3.1.all applicable laws, regulations and industrial awards and agreements, including without limitations those relating to drugs and alcohol, health, safety and environmental.
6.3.2.All applicable agreements, requirements, policies and procedures imposed on Incite by You, which are otherwise conveyed to Incite by You or Your client, as if the requirements were imposed on Incite itself; and
6.4. You may not change the specifications and/or standards applicable to the Services to be supplied by Incite pursuant to a Purchase Order unless agreed in writing by Incite. Where such change increases or decreases Incite costs in performing the Services, an equitable adjustment will be made to the Price to reflect such increase or decrease in the cost of supply.
7. Nature of Engagement
The parties agree that the relationship between them is one of Client and independent Customer and no relationship of employment, agency, partnership or joint venture is created between the parties. Neither party is authorised to incur any obligation on behalf of the other party, unless expressly authorised to do so in writing by the other party.
8. Conflict of Interest
Incite warrant that:
8.1. Incite has no actual or potential conflict of interest in carrying out the Services under the Contract and shall immediately advise You in writing of any potential conflict of interest, before commencing the Services;
8.2. Incite will take all required steps to ensure that no conflict of interest arises in relation to any Services, between You and Incite or between Incite and Your client; and
8.3. Incite will comply with all reasonable requests and requirements imposed by You or Your client in relation to maintaining no conflict of interest, as part of its obligations under clause under clause 6(b) above.
9. Fees and Payment
9.1. You will pay Incite fees for the Services rendered, at the rate stated in Incite’s Offer.
9.2. You will also reimburse Incite for reasonable expenses necessarily incurred in providing the Services at Cost plus a 15% Administration Fee if not stated in “The Offer”
9.3. Incite will provide Tax Invoices, including GST, as well as any other supporting documentation reasonably requested by You.
9.4. Incite’s payment terms are by electronic funds transfer (EFT) within 14 days of the date of invoice.
9.5. Incite may charge You an administration fee of $75 + GST and interest at 2% per month on any overdue amounts.
We must keep each other’s confidential information confidential and may only disclose that information to the extent required to perform the Contract, by law or a government body or authority; or in connection with legal proceedings.
11. Intellectual Property
Incite will comply with all reasonable requests of You and Your client in relation to protecting intellectual property rights.
12. Personal Information and Privacy
The CV of Incite Employees and Subcontractors and other information regarding skills and experience may be forwarded, upon Incite’s written approval, by You to Your clients and project participants for the purposes of submitting tenders or quotes, meeting project requirements, assignment approvals, health and travel and other related arrangements.
13. Insurances and License’s
13.1. At Your request and cost, Incite will, for the duration of the Contract, maintain the following insurance coverage:
13.1.1. Professional Indemnity Insurance, in the sum of $5 million per claim;
13.1.2. Public Liability insurance, in the sum of $10 million dollars;
13.2. Incite will maintain Workers Compensation insurance, as required, for each State in which the Services are provided.
14. Liability and Indemnity
14.1. Incite shall, except to the extent that the loss or damage is caused by or contributed to by the negligence or other wrongful act or omission of You or Your client, be liable for loss or damage (including personal injury whether or not resulting in death) suffered by the You or Your client, arising only from any unlawful or negligent acts or omissions by Incite in the course of the performance (or attempted or purported performance) of the Services.
14.2. In any instance where the parties cannot agree on the mutual contribution levels, the matter will be referred to independent arbitration as recommended by the NADRAC (National Alternative Dispute Resolution Advisory Council).
14.3. Incite’s liability under clause 14.1 is limited to the level of Insurance requested in clause 13.
15.1. Incite may terminate the Contract at any time by giving You 28 days’ notice in writing.
15.2. If either of Us breaches the Contact in a material way, the other may give notice requiring the breach to be immediately remediated within 30 days. If the breach is not so remedied, the party serving notice may serve a further notice terminating the Contract with immediate effect.
16.1. If any provision or the application of any provision in the Contract is or becomes illegal, void or unenforceable, it will be severed from and not affect the validity or enforceability of the remaining provisions in the Contract.
16.2. Wherever in the Contract reference is made to the consent of Incite or the Managing Director of Incite, this means that such person will have sole discretion to grant or refuse consent and to impose such pre-conditions for granting consent, as it may require.
16.3. No relaxation of any term of the Contract or failure to require the other party to comply with any term shall be construed as a waiver or limitation of a party’s right’s to require compliance at any time.
17. Force Majeure
17.1. Neither of Us will be held liable for breach of contract or any losses, damage or injury incurred to the other wherever performance of the Contract is prevented by circumstances which are deemed to be outside Your or Incite’s control (‘force majeure circumstances’).
17.2. In the event that either party is unable wholly or in part to perform its obligations under the Contract as a result of the occurrence of force majeure circumstances, such party will immediately give notice to the other of the details of such occurrence, and both parties will make arrangements and adjustments to the Contract as necessary. Unless otherwise agreed in writing, upon cessation of the event affecting performance of the Contract, both parties shall as far as practicable complete performance of their respective obligations under the Contract.
The Contract is governed by the laws of the State of Western Australia.