Standard Terms and Conditions
“Agreement” means the agreement comprising the Statement of Work and these standard terms and conditions.
“Business Day” means a day of the week which is not a Saturday, Sunday or public holiday in the State in which the Products and/or Services are to be delivered.
“Business Hours” means 8:30AM to 5:30PM on Business Days.
“Hardware” means equipment specified in the Statement of Work.
“Location” means the location for installing the Products as set out in the Statement of Work or the Project Management Plan where applicable.
“Products” means the Hardware and the Software collectively.
“Project Management Plan” means the documentation listing elements of the plan for delivering and implementing the Products and Services.
“Purchase Order” means an official authorised purchase order issued to Rise.CX by the
“Services” means the services to be supplied by Rise.CX as specified in the Statement of Work.
“Software” means any computer programs supplied under the Statement of Work, and may be Rise.CX Software, developed software or third-party software.
“Specifications” means the descriptions, plans, drawings, data, design, information or specifications relating to the Products and Services which are either attached to this Statement of Work or incorporated by reference.
“Statement of Work” means the document describing the Products and Services and which incorporates these Terms. This can also be referred to as a Proposal document.
Rise IT Pty Ltd trading as Rise.CX (ABN 44 629 996 649) (“Rise.CX”) agrees to supply the goods and software (“Products”) and the services (“Services”) described in the Statement of Work to the Client on these terms and conditions (“Terms”).
Purchase Orders for Products or Services described in the Statement of Work constitute acceptance by the Client of the Only these Terms (not other terms and conditions which may be attached to or incorporated in a Purchase Order) form part of the Agreement between the parties. Rise.CX’s acceptance of a Purchase Order will not be taken as acceptance of any such terms or conditions.
In the event of any inconsistency between the following documents which may comprise the Agreement, they must be construed with the documents appearing earlier in the following list taking precedence over those appearing later: (a) the Statement of Work; (b) these standard terms and conditions of supply; then (c) the Project Management Plan.
Prices and Payment
Payment terms are strictly 30 days unless otherwise specified on the invoice.
Products will be invoiced on Services will be invoiced at the end of each month and on completion or as otherwise prescribed in the Statement of Work.
Prices quoted are valid for 30 days unless otherwise specified on the quotation.
Quoted prices based on a stated exchange rate will be adjusted on invoicing to take account of any exchange rate fluctuations. Adjustments will be based on the exchange rate quoted by the ANZ Bank at the close of business on the day before the date of Any discount which Rise.CX may have granted to the Client is forfeited if payment is not made to Rise.CX by the due date. Payment must not be withheld pending the settlement of any claims or disputes.
Time and Materials Charges
This clause 6 applies when the charges are based on the time taken to perform the services plus the cost of associated Products and materials Timesheets.
Rise.CX will deliver timesheets on request to the Client on Mondays (or Tuesday if the Monday is a public holiday) for the preceding fortnight’s Services, itemising the hours worked per day by the resource(s). If the Client does not agree with the timesheets, it must give Rise.CX written notice of the dispute any of the particulars in the timesheets before 5:00PM on the following Friday, failing which the timesheets(s) will be deemed to be approved.
In the event of a dispute the Client must specify the disputed items and reason for the dispute. Rise.CX will then work with the Client in good faith to resolve the If the parties are unable to resolve the dispute and agree to the original or an amended timesheet within seven (7) days then either party shall have the right to suspend this agreement until such time that the dispute is resolved under clause 26.
Subject to clause 6.5 Rise.CX will only charge the Client for effective hours worked by Rise.CX personnel, which means hours actually engaged in performing the Services and (unless otherwise agreed) excludes meal breaks, travel time to the Client's (or its nominee's) premises, holiday and other leave entitlements and Rise.CX will not invoice the Client for additional hours worked unless Rise.CX has received a written request from the Client to undertake work for those additional hours.
If the Services are performed outside a metropolitan area, or if travel is required by the Client as part of the Services, the Client must pay the reasonable travel and accommodation costs incurred by Rise.CX in the supply of the Services.
Purchase Orders (PO) and Billing
The Client must raise a PO for the engagement. At the end of each agreed billing cycle of a fortnight or a month (“Billing Period”) Rise.CX will invoice the Client against the PO for the engagement as per the approved timesheets. CX will track the expenditure against the PO and the Client must do the same. Where the engagement will exceed the balance of the PO then the Client must issue a new (or amended) PO to cover the charges for the balance of the engagement. Rise.CX must not perform Services to exceed the approved budget as per the PO.
The amount payable to Rise.CX is inclusive of taxes, duties and government charges imposed or levied in Australia in connection with the supply of the Products and Services other than GST. The Client is liable for any GST and any new or varied taxes, duties or charges imposed subsequent to Rise.CX’s quotation or proposal in respect of the supply of the Products and Services. Rise.CX will issue a valid tax invoice.
Any amount not paid by the due date for payment will carry interest from that date until payment is made in full at the rate being 2 percentage points above the overdraft rate charged on overdraft accounts over $100,000 by the ANZ Bank from time to time.
Rise.CX makes no warranty in relation to the Products or Services other than as contained in these Terms or as prescribed by a law which cannot be excluded or in the case of Products, as provided by the Products’ respective manufacturers as made known to the Client, as provided in the documents supplied by Rise.CX or by the manufacturer or as otherwise published or made known to the Client. Defects in Services reported to Rise.CX within 30 days of delivery of the Service will be rectified by Rise.CX at no charge to the Client. Rise.CX will not provide claimed warranty services for defects or deficiencies in Products or Services which are caused by: (a) external causes including natural disaster, fire, accident, neglect, misuse, vandalism, water, lightning, power surge or spike; (b) the use of a Product for other than its intended purpose; (c) the use with or connection of a Product to items not approved by Rise.CX; (d) the performance of maintenance or attempted repair by persons other than Rise.CX or as authorised by Rise.CX; (e) changes made to the deliverables created by performance of the Services or to the operating environment; (f) the relocation of Products by the Client; or (g) any configuration or reconfiguration by the Client of the Products or other equipment with which the Products interface.
Rise.CX must use its reasonable endeavours to deliver Products or supply Services to the Client by the date agreed but is not liable for any delays or failure in delivery or supply caused by matters beyond its control. Freight charges incurred by Rise.CX in delivering Products to the Client will be invoiced to the Client at cost unless quoted otherwise.
Compliance with Laws
The Client must ensure that the Specifications set out in the Statement of Work relating to the Products and Services, and the use of the Products and Services, satisfies all of the Client’s legal and regulatory obligations and any other Client compliance requirements including, without limitation, compliance by the Client with any statute, regulation, corporate governance matters and internal company Nothing in the Agreement requires Rise.CX to ensure, recommend or facilitate the Client’s compliance with any matter referred to in this clause, except to the extent prescribed in the Statement of Work and the Client acknowledges that it has obtained its own advice on such compliance matters.
Unless the Client gives CX written notice of any aspect of a deliverable which is alleged by the Client to be otherwise than in accordance with these Terms or any applicable Specifications within seven days of the date of delivery of that deliverable, the Client is deemed to have accepted that deliverable on delivery. Where the Client puts a deliverable to commercial use, it is deemed to have accepted that deliverable on the first day of such use, whether or not a notice of the kind contemplated by this clause is given to Rise.CX as required.
Acceptance Testing (general)
In this clause, clauses 14, 15 and 16, “Errors” means: (a) defects in the system which cause it not to operate in conformity with the relevant acceptance tests; or (b) defects in the documentation which renders it inaccurate, erroneous or otherwise unreliable; (c) but does not include defects or errors in or caused by: (i) any installation or infrastructure on the Location not carried out or provided by Rise.CX; (ii) the Client supplied items (not being adjustments or modifications to Client supplied items carried out by Rise.CX as part of the Services); or (iii) the provision of any other goods, facilities or services by the Client or by any third party.
All acceptance tests must be undertaken, in the absence of agreement to the contrary, between the hours of 9.00 AM and 5.00 PM on such Business Days as may be nominated by the Client. If testing is required to be carried out outside those hours, CX is entitled to an additional charge in accordance with the rates set out in the Statement of Work.
At any time prior to completion of any acceptance tests, CX may at its expense substitute such other Hardware or Software meeting or exceeding the Specifications.
Where an acceptance test fails as the result of the failure or unsuitability of a Product used in the system which Product has been specified by the Client, (as opposed to recommended by Rise.CX), the acceptance test is deemed to have been passed, notwithstanding such failure.
Upon the completion and passing of the acceptance tests for each Location, and no later than two Business Days thereafter or following commencement of commercial use at a Location (whichever first occurs), the Client must issue to CX certification thereof, and the date of such certificate is the “Location Acceptance Date” in respect of that Location.
Immediately upon the completion of acceptance tests, the Client must either: (a) provide Rise.CX with written certification of the passing of those acceptance tests and the results obtained, or (b) provide a statement of points of failure with the relevant acceptance tests (the “Statement of Errors”) to be corrected prior to the Client's acceptance of that phase.
In determining whether any acceptance tests have been passed for the purposes of the Agreement: (a) minor Errors set out in the Statement of Errors; and (b) the failure of any part of the system to pass any acceptance test after it has been accepted for day to day use by the Client after installation, may be disregarded, provided that CX corrects all such items referred to in (a) and above within twenty five (25) Business Days after conducting such acceptance tests and demonstrates to the responsible officer that such Errors have been corrected.
Upon the completion and passing of all the acceptance tests for all Locations, and no later than ten Business Days thereafter or following commencement of commercial use at the last Location (whichever first occurs), the Client must issue to Rise.CX certification thereof, and the date of such certificate is the “Final Acceptance Date”.
Performance of acceptance tests by the Client
This clause 14 only applies if it is agreed that the Client is to conduct the acceptance If Rise.CX is to conduct the tests, clauses 15 and 16 apply.
Rise.CX must notify the Client in writing when a phase of the system is ready for commencement of acceptance tests. The Client must commence all acceptance tests on or before the dates for commencement set out in the Project Management Plan and carry them out in accordance with Rise.CX’s test plan which has been provided by Rise.CX for that phase.
The Client must permit employees of Rise.CX to attend and observe the results of the conducting of the acceptance tests. Immediately upon the completion of acceptance tests, the Client must either: (a) provide Rise.CX with written certification of the passing of those acceptance tests and the results obtained, or (b) provide a Statement of Errors to be corrected prior to the Client's acceptance of that phase.
Performance of acceptance tests by Rise.CX
This clause 15 only applies if it is agreed that CX is to conduct the acceptance tests. If the Client is to conduct the tests, clause 14 and 16 apply.
Rise.CX must notify the Client in writing when a phase of the system is ready for commencement of acceptance tests. Rise.CX must commence all acceptance tests on or before the dates for commencement set out in the Statement of Work and carry them out in accordance with Rise.CX’s test plan which has been provided by Rise.CX for that phase.
If the Statement of Work so provides, Rise.CX will integrate the Products into the Client’s environment. Rise.CX will ensure that the Products are correctly installed and that they are operational. CX is not responsible for validation of the features and functionality of any Product.
Rise.CX must permit employees of the Client to attend and observe the results of the conduct of the acceptance tests. Immediately upon the completion of the acceptance tests, Rise.CX must give the Client a notice of completion of the tests.
Within five days of completion of the tests, the Client must either: (a) provide Rise.CX with written acceptance of the passing of those acceptance tests, or (b) provide a Statement of Errors to be corrected prior to the Client's acceptance of that phase.
Rise.CX must correct the Errors set out in a Statement of Errors (if any) within ten Business Days after receipt of a Statement of Errors, or such other time agreed between the Client and Rise.CX, and re -deliver the corrected items to the Client. The Client must promptly (but in any event not more than two Business Days after such redelivery) carry out such of the acceptance tests as it considers necessary to retest such phase under test and immediately after completing such tests provide Rise.CX with written notice of the completion of the acceptance tests and the results obtained.
The procedure set out in this clause 16 must be repeated until: (a) the acceptance tests are passed and, the Client gives written notice of acceptance of the phase or item; or (b) the phase or item is deemed to be accepted; or (c) the Client terminates the Agreement pursuant to clause 3.
If: (a) any phase fails to meet the relevant acceptance tests after the third conducting of acceptance tests (provided such failure occurred after the due date for completion of such phase or item under the Project Management Plan), or (b) if acceptance tests due to be commenced in respect of any phase or item of the Services have not commenced by the time provided for completion of such phase in the Statement of Work as a result of the Services in respect of such phase or item not being completed by the dates or within the times set out in the project plan, the Client may refer the matter to dispute resolution in accordance with clause 26.
For the purposes of clause 16.3, any time for completion of a phase or item is deemed to have been extended by the period of any delay by the Client in such commencement of the relevant acceptance tests for that or any preceding phase or item beyond a period of seven days after CX notifies the Client in writing that it is ready for acceptance in accordance with clause 14.2.
For the purposes of the acceptance process, acceptance by the Client of any phase or deliverable must not be withheld on the basis of trivial, inconsequential or insignificant defects or departures. Rise.CX must rectify all such defects or departures before final acceptance of all deliverables.
Notwithstanding any other provision of the Agreement, the Client is deemed to have accepted any Product comprising the system upon the earlier of: (a) the use of that Product for any purpose other than testing; (b) where CX is the testing party, fourteen days from service by Rise.CX of a notice pursuant to clause 15.2, unless the Client had served a notice pursuant to clause 15.5(b); (c) where the Client is the testing party, fourteen days from service by Rise.CX of a notice pursuant to clause 14.2, unless the Client had served a notice pursuant to clause 14.3(b).
Client may request in writing that CX performs: (a) additional work that is required under the Agreement; or (b) work different from or inconsistent with the Statement of Work; (c) and any such request will constitute a “Proposed Variation”.
Within a reasonable period of receiving a Proposed Variation from the Client, CX will notify the Client of: (a) the cost of the Proposed Variation, calculated either on a time and materials basis or on a fixed price basis; (b) the delay (if any) to the delivery of Products or Services under the Agreement which will result from the Proposed Variation; and (c) the required amendments to the scope of work in the Statement of Work and/or the Project Management Plan (if any), if the Proposed Variation is agreed between the parties.
If Rise.CX recommends a variation, it will submit a copy of the Proposed Variation to the Client together with a statement of the matters in clause 17.2.
If the Client submits a proposal or request which does not expressly constitute a Proposed Variation but which CX considers to be a Proposed Variation, Rise.CX must within fourteen days of receiving the proposal notify the Client that it considers the proposal to be a Proposed Variation and whether or not Rise.CX agrees to such Proposed Variation, together with a statement of matters in clause 17.2.
If both parties agree to a Proposed Variation in writing (including the matters under 2), the scope of work will incorporate the Proposed Variation on the agreed terms from the date of the written agreement and the price will be adjusted to reflect the price of the Proposed Variation.
If the parties do not agree to a Proposed Variation in accordance with this clause: (a) Rise.CX must meet its obligations in accordance with the Agreement (unless CX requires an extension of time because of the time spent preparing a Proposed Variation); and (b) no adjustment to the price will be made except that, if the Proposed Variation was submitted by the Client, the Client must pay Rise.CX the reasonable costs of preparing the Proposed Variation and any associated documentation where the time involved was greater than 8 person hours.
If the preparation of an estimate, quote or proposal for a variation engages CX personnel in more than eight (8) hours labour for one person, the time expended on preparation must chargeable to the Client at the Rates.
Rise.CX must not vary the work under the Agreement except as directed by the Client and only if the variation is within the general scope of the Agreement.
Risk and Insurance
Risk of loss, theft, damage, deterioration or destruction of Products passes to the Client upon the earlier of: (a) delivery to the Client; (b) the taking of possession by the Client; and (c) the delivery to any carrier contracted to the Client for delivery to the Client.
Until the Products have been paid for in full, they remain the property of Rise.CX. If the Client fails to pay any amount to Rise.CX when due, Rise.CX may immediately without notice or demand, enter upon the Client’s premises and take possession of the This right is without prejudice to any other rights that Rise.CX may have.
In addition to the matters set out in clause 22, the Client must perform the obligations, supply the items and make available the things set out in the Statement of Work which are specified to be obligations and responsibilities of the Client.
Access to Locations
Subject to clause 2, Rise.CX must be allowed reasonable access to each Location during Business Hours for the purpose of meeting its obligations under the Agreement.
Rise.CX must use reasonable endeavours to confirm the dates upon which access is required and the arrangements for such access prior to entering such Location.
Rise.CX must be allowed access to any particular Location for the purpose of the Agreement outside the Client’s normal Business Hours only upon receiving the prior consent of the Client.
The Client must prepare the Location prior to delivery and in particular must: (a) ensure the supply of adequate electric current; (b) ensure the installation of adequate electrical and mechanical fittings not supplied by CX; (c) comply with the obligations of the Client set out in the Statement of Work and/or the Project Management Plan; (d) provide appropriate environmental conditions; and (e) provide a safe work environment for Rise.CX’s personnel.
The Client's authority and acknowledgements (Security Testing Services)
In this clause 22, “Security Testing Services” means controlled electronic probing of hardware and software in the form of either a vulnerability assessment or an ethical penetration test.
If Rise.CX is supplying Security Testing Services, the Client authorises Rise.CX to: (a) provide the Security Testing Services; (b) do all things necessary to provide the Security Testing Services and to discharge its obligations; and (c) access data or software on the relevant system, where required to properly perform the Security Testing Services.
The Client acknowledges that, in providing the Security Testing Services, Rise.CX might: (a) circumvent access controls or access protected data; (b) inadvertently modify, alter, corrupt, erase or destroy data or software stored on or accessible through the system; or (c) interfere with, disrupt, interrupt or obstruct the relevant system or the Client’s business or operations; and (d) for the avoidance of any doubt, the Client authorises Rise.CX to do all such acts consistent with the Statement of Work in relation to the provision of the Security Testing Services.
The Client acknowledges that the security of the relevant system is and will remain the responsibility of the Client.
The Client acknowledges that the information contained in any security -related report supplied by Rise.CX is sensitive and confidential information and that it should be kept secure at all times.
If the consent, approval or authority of a person other than the Client is required in order for Rise.CX to provide the Security Testing Services lawfully and without infringing the rights of any person, the Client warrants that it will obtain that consent, approval or authority before Rise.CX commences to provide that part of the Security Services for which the consent, approval or authority is required.
The parties will at all times promptly inform each other of any circumstance whereby, in the relevant party’s opinion, the performance of an obligation of either of them is likely to be delayed, and the extent or nature of such delay. If such a delay occurs the escalation procedure detailed in this clause 23 must be followed.
If Rise.CX believes at any time that it is unlikely to be able to provide the Client with all or any of the deliverables by the relevant due date for that deliverable, Rise.CX must promptly notify the Client in writing of that belief.Rise.CX’s notice must contain: (a) the reasons for the anticipated delay; (b) an estimate of the
additional time that Rise.CX believes it will need to meet its obligations under the Agreement; and (c) details of what Rise.CX: (i) intends to do to minimise the delay; and (ii) recommends be done by the Client to minimise the delay.
Such notification will not relieve either party from any of its obligations under the Subject to clause 23.6, if Rise.CX is likely to fail or fails to provide all or any of the deliverables by the relevant due date Rise.CX will promptly: (a) commit such commercially reasonable additional resources at no additional cost to the Client (including suitably qualified and experienced personnel) in order to: (i) accelerate work to ensure provision of the late deliverable as soon as is reasonably possible and in any event on or before the due date for any subsequent deliverables; and (ii) reasonably ensure the provision of all subsequent deliverables on time; and (b) use its best commercial endeavours to require any third party supplier of any of the deliverables, whose fault or delay in delivery has caused or contributed to the delay, to: (i) allocate a suitably qualified technical person to assist in overcoming the delay until the delay has been overcome; (ii) allocate a manager of sufficient seniority to supervise the implementation of the remedy for the delay by the third party supplier and to report to the Client on the progress thereof; and (iii) implement any other procedures for the minimisation of delay as may be set out in the Project Management Plan.
To the extent that the delay has been caused by an act or omission of or breach of the Agreement by the Client or an act or omission of its contractors, Rise.CX shall be entitled to: (a) an extension of time for performance of the Agreement; (b) make a Charge for the Services supplied pursuant to this clause 23; and (c) render an invoice for all Products and Services supplied to date if the delay is expected to affect the project schedule by more than fourteen days.
If Rise.CX is unable to perform part of the Services as scheduled due to delay or failure by the Client to perform an obligation which is a pre -condition to Rise.CX's capacity to perform such Services then, for such period that any Rise.CX employee is prevented from such performance, Rise.CX may invoice the Client at Rise.CX's hourly rate for the affected employee(s), provided that Rise.CX must use its best endeavours to allocate the employee(s) to other chargeable services.
Rise.CX and the Client agree that they will keep at all times as strictly confidential any confidential information that is disclosed or provided by one party to the other. In this clause, “confidential information” means information in any form but does not include information that is already in the public domain at the time that it is disclosed or becomes part of the public domain otherwise than as a result of an unauthorised disclosure by Rise.CX or the Client.
The Client acknowledges that, unless otherwise agreed in writing, all intellectual property rights in or attaching to the Products or arising out of the provision of Services are and will remain the property of Rise.CX (or its supplier, where such rights are owned by that supplier). Software will be licensed to the Client on the terms of the relevant licence agreement provided with the Product or as published by the Software manufacturer or as otherwise agreed in writing. Any rights to be conferred on the Client will only commence on payment of all charges payable in connection with those rights.
Each of the parties shall use their reasonable endeavours to co-operatively to resolve a dispute.
If a dispute arises, the dispute shall be referred to Rise.CX’s project manager and the Client’s representative for resolution.
If the dispute is not resolved by Rise.CX’s project manager and the Client’s representative within five Business Days of such a referral in accordance with clause 26.2, the dispute shall be referred to a panel (“Panel”) for Each party shall nominate a representative for the Panel within five (5) Business Days of the referral to the Panel in accordance with this clause 26.3.
If the dispute is not resolved by the Panel within ten Business Days of such referral, the Panel shall within three Business Days refer the dispute for resolution to a panel comprising the CEO of each party (or his or her nominee) and the members of the Panel (“Executive Panel”). If the dispute is not resolved by the Executive Panel within ten Business Days of such referral, clause 27 shall apply.
The Panel and the Executive Panel shall determine their own procedures for the resolution of the dispute.
Decisions of the Panel or the Executive Panel may only be made by unanimous agreement of the members of the Panel or the Executive Panel, as the case may be.
Any decision of the Panel or the Executive Panel shall be binding on the parties.
Neither party shall commence legal proceedings unless the parties have undertaken the process set out in clauses 26.2, 26.3 and 26.4, and those processes have failed to resolve the dispute.
Prior to the resolution of a dispute, the parties shall continue to perform their respective obligations to the extent that those obligations are not the subject matter of the dispute.
Nothing in this clause shall prevent a party from choosing to perform an obligation which is the subject matter of the dispute.
Nothing in this clause prevents either party from seeking urgent injunctive relief against the other party.
The parties expressly agree to endeavour to settle the dispute by mediation administered by the Australian Commercial Disputes Centre (“ACDC”) before having re course to arbitration or litigation.
The mediation shall be conducted in accordance with the ACDC Guidelines for Commercial Mediation which is operating at the time the matter is referred to ACDC.
The ACDC Mediation Guidelines set out the procedures to be adopted, the process of selection of the mediator and the costs involved.
The terms of the ACDC Mediation Guidelines are hereby deemed incorporated into the agreement.
This clause shall survive termination of the agreement.
If either party (“the defaulting party”): (a) makes default in any payment or material breaches any of these Terms and fails to rectify the breach within 30 days of written notice to do so from the other party (“the non-defaulting party”); (b) becomes unable to pay its debts as and when they fall due; or
commits an act of bankruptcy or, being a company, enters into liquidation or provisional liquidation whether compulsory or voluntary or compounds with its creditors generally or has a receiver or receiver manager or administrator appointed over all or part of its assets or passes a resolution for winding-up or a petition is presented for its winding-up, Rise.CX may without prejudice to any of its rights or remedies under these Terms or otherwise by notice to the Client: (d) suspend further supply and require payment in advance for future supply; (e) recover possession of any Product for which payment has not been made; (f) terminate all or any Purchase Orders for Products or Services which have been accepted by Rise.CX; (g) claim immediate payment of all amounts due by the Client in respect of all Products and/or Services notwithstanding the due date or dates for payment or any terms agreed by Rise.CX; and/or (h) continue to enforce its rights and recover from the Client such payments and any other amounts owing as and when they fall due.
If the Agreement is terminated for CX’s failure to remedy a material breach, in addition to any other termination rights provided under the Agreement the Client: (a) may retain all Products provided under the Agreement if payment for them is complete; (b) remains liable to pay for any Services supplied before the date of termination, provided payment for such Services is not under dispute by the Client in good faith; and (c) may pursue any additional or alternative remedies provided by law or equity.
The Client acknowledges that Rise.CX has not made any warranty or representation, express or implied, in relation to the Products or the Services, including whether they are suitable for a particular purpose (whether such purpose was made known to Rise.CX or not), unless provided in writing.
No Implied Terms
To the fullest extent permitted by law, the parties agree to exclude any terms which would otherwise be implied into these Terms by any statute.
The liability of Rise.CX for a breach of a condition or warranty implied into these Terms by the Competition and Consumer Act 2010 is limited to the following: (a) if the breach relates to goods, to the replacement of the goods or the supply of equivalent goods, or the repair of the goods, or the payment of the cost of replacing the goods or of acquiring equivalent goods or the payment of the cost of having the goods repaired; and (b) if the breach relates to Services, the supplying of the Services again or the payment of the cost of having the Services supplied again.
Limitation of Liability
To the extent permitted by law, all express or implied warranties, representations, statements, terms and conditions relating to Rise.CX, Customer, or the provision of Products and/or Services under these Terms, not expressly set out in these Terms, are excluded from the Agreement between the parties.
Each party’s aggregate liability, whether arising from breach of contract, negligence or any other tort, breach of warranty, under an indemnity, or statute, in equity or otherwise is limited to an amount equal to the total amount paid to Rise.CX under the relevant Statement of Work.
Nothing in clause 2 operates to limit either party’s liability for: (a) claims for death, personal injury or damage to tangible property; (b) claims for breach of a third party’s intellectual rights.
Neither party has any liability to the other party for any incidental, indirect, special or consequential loss or damage, or for loss of or corruption of data, loss of use, revenues, profits, goodwill, bargain, opportunities or anticipated savings, whether arising from breach of contract, negligence or any other tort, in equity or under an indemnity, warranty or otherwise, whether or not the other party was aware of the possibility of such loss or damage.
During the term of the Agreement and for six (6) months after termination by either party of the Agreement, a party must not intentionally solicit for employment or employ any person who is an employee of the other party who was involved in the matters covered by the Agreement.
This clause does not apply where: (a) a person responds to an advertisement for employment by a party; or (b) the employment is agreed to by the party who is the employer or was the former employer.
Each party acknowledges that the restriction specified in this clause 32 is in the circumstances reasonable and necessary to protect each party’s legitimate interests.
The parties agree that: (a) a party may be restrained by an injunction or similar remedy for any conduct or threatened conduct which is or will be a breach this clause 31; and (b) a party who employs an employee of the other in breach of these Terms must pay the sum of $50,000 as liquidated damages to the other party for the loss suffered by the party as a result of the breach, which amount the parties acknowledge to be a genuine pre -estimate of the loss so suffered and not a penalty.
Exercise by a party of rights pursuant to clause 4 shall be in lieu of any other right of action or remedy which has accrued or may accrue as the result of a failure to comply with this clause.
Any variation to these Terms must be agreed in Variations to any of the Services agreed to be supplied will be charged by Rise.CX at its then current rates for those additional services, unless otherwise agreed in writing.
Notices must be in writing and sent by mail, hand delivery or transmitted by facsimile to the address or facsimile number of the receiving party and are deemed delivered, in the case of: (a) hand delivery, on delivery; (b) posting, three days after dispatch; and (c) facsimile, on completion of complete and legible transmission.
No leniency, indulgence or extension of time granted by CX to the Client will prejudice any of Rise.CX’s rights in any way or constitute a waiver of any of Rise.CX’s rights.
If any of these Terms are for any reason declared to be or become unenforceable, invalid or illegal, the remaining Terms will remain in full force and effect.
These Terms are governed by the laws of the State or Territory of Australia in which this Agreement is executed and the parties agree to submit to the non-exclusive jurisdiction of the Courts of that state.The Statement of Work and these Terms constitute the entire agreement between the parties on the subject matter and supersede any previous understanding or agreement on that subject matter.