Standard Terms and Conditions

Introduction:

1. These Standard Terms and Conditions (“Terms”) govern transactions by which the Client purchases products and/or services from the COSOL (being COSOL Limited ABN 66 635 371 363, COSOL Australia Pty Ltd ABN 27 092 306 682). The Client accepts these Terms, on behalf of its enterprise, when accepting a quote, proposal or Statement of Work (“Offer Document”) that incorporates these Terms by reference by:
   i) signing them (by hand or electronically),
   ii) using the Product or Service, or allowing others to do so, or iii) making any payment for the Product or Service.
2. The Offer Document, these Terms, and any other document governing the relationship between COSOL and the Client and referencing the applicable Offer Document shall be referred to collectively as the “Agreement.” Notwithstanding the foregoing, no terms of any purchase order shall replace, modify, amend, or override the Agreement.

Services:

1. Scope of Work. All services to be performed and third-party products to be delivered by COSOL under the Agreement (“Services”) shall be mutually agreed to by the Client and COSOL and shall be recorded in a written Offer Document signed by an authorised representative of each party.
2. Specifications; Change Management Process. To the extent required by any of the Services, COSOL and Client will agree upon any necessary specifications, implementation plans, project schedules, and project parameters.  Such specifications, plans, schedules, and parameters, shall be set forth in the applicable Offer Document.  The parties acknowledge that changes in specifications, implementation plans, project schedules, and project parameters, may be desirable in light of actual experience gained in the course of providing the Services or as the Client redefines its needs.  Accordingly, either party may propose changes to any such specifications, plans, schedules, or parameters, by submitting a change request.  Client shall submit any change request it has to the COSOL Account Executive assigned to Client.  Each party shall consider such proposed changes in good faith.  If a proposed change is accepted, it shall be reduced to a written amendment to the applicable Offer Document and signed by authorised representatives of the parties.  If such change results in a change to any fees, the amendment shall state the revised fees.
3. Licence Monitoring. Where the Services include the supply of licensed software, COSOL monitors for licence compliance. COSOL will provide a monthly report on licensing compliance identifying:
   • where the Client is out of compliance, or under-licensed.
   • where the Client is within compliance and may have more licenses than is necessary and identify benefits to adjust licensing upon renewal
4. Resources. Where COSOL has committed resources in an Offer Document, this is an equivalent resource and should not be construed as a commitment to have this resource idle and available for the Client’s exclusive use.
5. Hours of Service. Day rates are calculated on the basis of an eight-hour working day. COSOL reserves the right to charge additional fees on a pro-rata basis when services delivered exceed eight hours in a single day.  A premium fee may be charged for services required between 6pm – 6am, weekends or public holidays.
6. Travel Time. Should the work require staff to visit Client site/s, travel time may be included in the overall billable time for the job. Within the Brisbane, Sydney and Melbourne metropolitan areas, this will only be charged for ad-hoc, work on demand type jobs.  For sites outside the Brisbane, Sydney or Melbourne metropolitan areas, travel time will be charged at the job’s set hourly rate. When a specific resource is required to travel outside their home state, a minimum 8-hour day will be charged.
7. Third – Party Products/Services. For Offer Documents incorporating third-party products, the following conditions apply:
   1. Advance Payment. COSOL reserves the right to request advance payment in full as confirmation of order.
   2. Licence Terms and Variations. This proposal is based on information received from Third-Party Vendors as to the licensing model, terms and conditions of use and licence fees, and is subject to confirmation by them at the time of order. If this information, including the licence fee, changes at any time resulting in the contents of the Offer Document being incorrect, COSOL reserves the right to change the license fees to comply with the fees charged by the supplier. Vendor specific terms and conditions of sale and/or Software Licence Agreements will apply.
   3. Price Variations. COSOL may increase the price for any item in order to cover any increase in our external costs for that item arising after the date that we accepted your order. Changes in external costs may include but are not limited to: our cost of obtaining supply; freight; insurance; taxes; storage, packaging or preparation; or exchange rate variations. If an incorrect charge has been made for goods or services supplied, you must advise us in writing within 7 days of receipt of an invoice.
   4. No Representation. COSOL sells goods sourced from vendors and sell to you based on description. You decide what purpose to use those goods for.  All information relating to product features, performance & benefits is provided in good faith and does not represent an endorsement by COSOL.

Client Responsibilities:

1. Cooperation. Client shall provide COSOL with such time and attention of Client personnel and such access to Client’s facilities and shall take such site preparation steps as may be necessary or appropriate to enable COSOL to provide the Services to Client.  Client shall make available qualified Client personnel to facilitate COSOL performance of its obligations under the Agreement.
2. Delays. The timely completion by COSOL of its obligations under the Agreement is dependent on the timely fulfillment by Client of its responsibilities.  If COSOL is prevented from performing any work or is required to perform additional work as a result of (a) the unavailability of Client personnel, (b) the unavailability of, or the incomplete or improper installation, configuration, or operation of Client’s facilities or equipment, (c) Client failing to timely provide COSOL with any necessary assistance, instructions, or information, or (d) Client otherwise failing to meet its responsibilities as set forth in this Section 3, Client shall pay COSOL on a time and expenses basis at COSOL's then-current standard rates for any work time lost or additional work performed.  The date on which COSOL's obligations are required to be fulfilled will be extended for a period of time equal to the time lost by reason of the delay or additional work.

Fees and Payments:

1. Fees. Client shall pay COSOL the fees specified in each Offer Document, as well as any other fees that become due under this Agreement. Fees must be paid in local curency.
2. Expenses. Client shall reimburse COSOL for reasonable expenses for travel, lodging, mileage, meals, and other out-of-pocket expenses incurred by COSOL solely in connection with the performance of the Services.  Mileage reimbursement is computed based on the current rate set by the Australian Tax Office.
3. Invoices and Payment. COSOL shall submit invoices to Client for the amounts due under the Agreement. Client shall pay each invoice within 30 days of receipt.  Direct deposit is the preferred payment method.
4. Maintenance. Ongoing maintenance costs may be subject to future increases.
5. Taxes. If any government or authority imposes a duty, tax (other than income tax), levy, or fee, on this Agreement, that is not otherwise provided for in the amount payable, Client agrees to pay it when COSOL invoices. If the taxes change, COSOL may adjust the charge or other amount payable to take into account that change from the date the change becomes effective.
6. Cancellation. COSOL is not obliged to accept the cancellation of any order. If, at our discretion, a cancellation is accepted, COSOL reserves the right to invoice for demonstrable time and out of pocket expenses, and an administration fee of an amount equal to 10% of the full original price for third-party products. Once goods have been delivered, no refund or exchange is available except as required by law.

Warranties

1. Each party warrants that it has the full authority, right, and power to enter into and perform its obligations under this Agreement. Each party warrants that its entering and performing this Agreement does not conflict with any other agreement to which it is a party, or any law or regulation of any applicable governmental authority.
2. COSOL warrants that all Services will be of professional quality conforming to generally accepted industry standards, and will be performed in a good and timely manner and in compliance with the requirements of the Agreement.
3. COSOL provides no warranty on services delivered under time and materials or Support engagements.
4. COSOL makes no warranty on the performance of third-party hardware and software. We will use all reasonable endeavours to assist you obtain the benefit of any guarantee or warranty offered by the vendor of supplied goods.
5. If specified in the SOW, COSOL will provide a warranty on fixed price application development engagements. The Warranty period begins at the conclusion of Client acceptance testing, and continues for the duration specified in the SOW. During the warranty period, COSOL will take timely action to fix, or provide a workaround to, situations where the solution is not performing in accordance with the specifications and the solution was tested during Client acceptance testing. Any problems identified as being outside the scope of the baseline specification or problems occurring on untested functionality will be the subject of a Change Request, and chargeable to the Client at COSOL's then current time and materials rates. COSOL will not be responsible for errors caused by the Client’s use of the product in a manner for which it was not intended, for errors in the Client’s data, for errors occurring in functionality that was not tested in Client acceptance tests or for use in an environment that is not recommended or supported.
6. The services and software are provided “as is” except as expressly stated in this Agreement, COSOL makes no warranty, express or implied, regarding any matter whatsoever. COSOL and its third-party suppliers specifically disclaim any and all liability for consequential and other indirect damages and implied warranties, including the implied warranties of non-infringement, merchantability, and fitness for a particular purpose.

Indemnities and Liability:

1. The total collective liabilities of COSOL and its third-party suppliers for all claims, whether in contract, tort, or otherwise, arising out of, connected with, or resulting from the Services or Software, or any other thing under this Agreement, shall not exceed the amounts paid by the Client under the SOW during the 12 months immediately preceding the claim.
2. In no event shall either party, its licensors, suppliers or subcontractors be liable for any incidental, consequential, indirect, or punitive damages (including but not limited to lost profits, lost revenue or lost savings), regardless of whether such liability is based on breach of contract, tort, strict liability, breach of warranties, failure of essential purpose or otherwise and even if advised of the possibility of such damages.
3. The obligations of this section shall survive the termination of this agreement.

Intellectual Property:

1. The Intellectual Property Rights in the Service, the Licensed Software, services, documentation, and other deliverables provided under this Agreement, including all modifications, improvements, upgrades, derivative works and feedback remain the sole property of COSOL and/or the Third-Party Suppliers at all times. Nothing in this Agreement assigns or transfers any right, title or interest in the Licensed Software to the Client. The Client must not represent that it has any Intellectual Property rights in the Service or the Licensed Software.
2. The parties acknowledge that this clause does not confer on COSOL any rights, title or interest in the Client Data, or information provided by the Client, their representatives or advisers, although the Client consents to COSOL inserting corporate logos and other similar intellectual property on project deliverables where appropriate unless notified otherwise.
3. COSOL hereby grants the Client a non-exclusive, perpetual, fully paid-up right to use, reproduce and modify any Developments provided in the course of performing the Services under this Agreement strictly for the Client’s internal business use and not for resale and/or distribution outside of the Client. Any and all Developments shall remain the sole property of COSOL. Any and all publications by the Client of any Developments must contain the applicable COSOL copyright notice.
4. Nothing in this Agreement affects the ownership of moral rights in the Licensed Software
5. The obligations under this Section shall survive termination of this Agreement.

General

1. Expiry. Offer Documents are valid for fourteen (14) days unless stated otherwise or extended in writing.
2. Excused Non-Performance. Neither party shall be liable for any delay in or failure of performance (excluding failure to make payments required by this Agreement) resulting from any cause or condition beyond its reasonable control, whether foreseeable or not.
3. Waiver. The failure of either party to act upon any right, remedy, or breach of this Agreement shall not constitute a waiver of that or any other right, remedy, or breach. No waiver shall be effective unless made in writing and signed by an authorised representative of the waiving party.
4. Notices. Unless provided otherwise in this Agreement, any notice required or permitted under this Agreement shall be personally delivered, or sent by email, courier, express or overnight delivery service, or by certified mail, postage prepaid, return receipt requested, to the address set forth in the General Order Details, or to such other address as shall be advised by any party to the other in writing. Notices shall be effective as of the date of receipt.
5. Third-Party Beneficiaries. COSOLs' licensors, suppliers, and subcontractors shall be third-party beneficiaries under this Agreement.
6. Dispute Resolution. In the event of any dispute arising between the parties in relation to this agreement that cannot be resolved through the best and genuine efforts of each party’s Senior Representatives within ten (10) working days (or longer period as agreed between the parties) of notice of the dispute will be referred to arbitration. All arbitration shall be conducted within the meaning of the Commercial Arbitration Act 1990 and the decision resulting from the arbitration shall be final and binding on the parties. The parties will bear their own costs of the arbitration. The terms and details of any arbitration and resulting settlement agreement is deemed to be Confidential Information and may only be published or announced with the consent of all parties.
7. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of Queensland, Australia and any claim made by one party against the other in any way arising out of this Agreement will be heard in Queensland and the parties submit to the jurisdiction of those Courts.
8. Precedence. Where any conflict occurs between provisions contained in two or more sections of this Agreement, the documents comprising this Agreement shall be read in the following order of precedence:
   • Statement of Work
   • Schedules
   • Standard Terms & Conditions
9. Severability. The provisions of this Agreement are severable. If any provision is held to be invalid, unenforceable, or void, the remaining provisions shall not as a result be invalidated.
10. Entire Agreement. This Agreement constitutes the entire agreement and understanding between the parties relating to the object and scope of this Agreement. Any representation, statement, or warranty not expressly contained in this Agreement, or incorporated by reference, shall not be enforceable by the parties. This Agreement may not be amended except by a writing that specifically references this Agreement and is signed by authorised representatives of the parties.