Standard terms and conditions governing all DWS consulting services, software sales, training and support engagements.
These General Terms & Conditions apply to all contracts for services (“DWS Services”, as defined in clause 2) performed by Digital Water Solutions Pty Ltd (“DWS”) to the extent that they are not explicitly deviated from by agreement in writing.
An offer for the carrying-out of DWS Services shall be binding on DWS only if (i) made in writing by DWS, and (ii) accepted in writing by the Client within two (2) months after the date of the offer. The offer and acceptance is referred to below as the “Agreement”.
“DWS Services” means the services to be performed by DWS under the Agreement. DWS agrees to carry out the DWS Services conscientiously and using, to the best of its ability, the knowledge available to DWS or which DWS deems appropriate to obtain.
The quality of the DWS Services shall be judged solely as to whether the DWS Services have been performed consistent with the professional skill and care ordinarily provided by firms practising in the same or similar locality and under the same or similar circumstances.
The Client shall make available to DWS, without charge and within a reasonable time, all pertinent data, information, assistance, equipment and facilities necessary for the performance of the DWS Services.
Upon request, the Client shall give its decision on all reports, recommendations and other matters properly referred to it by DWS, within a reasonable time. If the Client does not perform these obligations, DWS shall be entitled to an appropriate time extension and compensation for incurred additional costs.
In the absence of a written agreement to the contrary, prices specified in DWS’s offer shall be an estimate based on prices in effect on the date of the offer. DWS reserves the right to alter such prices to equal those as of the date of delivery, subject to one (1) month’s written notice.
DWS reserves the right, once work on the DWS Services begins, to adjust its hourly and rental rates to reflect general annual increases. Specified prices are exclusive of all indirect and direct taxes, VAT, duties, and withholding taxes.
Amounts due to DWS must be paid no later than fourteen (14) days after the date of the invoice (“Due Date”). In the event of delays in any due payment, DWS shall be entitled to suspend performance of the DWS Services until payment has been made, without liability to DWS.
If the Client fails to pay any due payment, the Client shall pay interest from the Due Date equal to the highest rate permitted by the Australian Interests Act in force at the Due Date, or the highest rate permitted by any other applicable law, whichever is higher.
The tangible Results produced by DWS in connection with performing the DWS Services (“Delivered Materials”) shall be the property of the Client. DWS grants the Client an irrevocable, royalty-free, world-wide and non-exclusive right to use DWS Property for the purpose of using the Delivered Materials.
DWS possesses certain expertise, know-how, techniques, models, generic tools, scripts, concepts, processes, software (including third-party licensed software) and other intellectual property rights (“DWS Property”). DWS Property is and remains the exclusive property of DWS.
The Client cannot use DWS’s name, logo, or other trade names without DWS’s prior written approval.
The Client must not, during or after the Agreement, disclose or make use of any confidential information obtained in the course of the Agreement relating to DWS or its business or finances. Confidential information does not include information which is or becomes public knowledge other than by breach of these Terms.
If force majeure circumstances arise which make it irresponsible or impossible to perform the DWS Services, DWS shall notify the Client in writing within a reasonable time. The time for completion shall be extended accordingly. Force majeure includes acts of God, war, civil unrest, governmental action, terrorism, pandemic, and other circumstances beyond DWS’s reasonable control.
The Client may at any time by written notification request variations in the DWS Services. If such variations result in a change to scope, time or compensation, these shall be modified accordingly in writing in a separate agreement.
In case of any suspension, postponement or delay caused by the Client, the time for completion shall be extended accordingly plus a reasonable period not exceeding one month for resumption. This includes situations where DWS has not received necessary information from the Client, or due to lack of payment.
DWS agrees to indemnify the Client from any loss, liability or damages arising out of DWS’s negligent acts, errors or omissions in performing the DWS Services, except to the extent caused by the Client’s sole negligence or wilful misconduct.
The Client agrees to indemnify and hold DWS harmless from any loss, liability or damages arising out of the Client’s negligent acts, errors or omissions.
To the fullest extent permitted by law, the liability of DWS (except for gross negligence or wilful misconduct) shall be limited to the lower of: (i) the total remuneration for the DWS Services under the Agreement, or (ii) AUD $100,000.
Any claim for indemnification or compensation must be submitted to DWS within 2 years after delivery of the DWS Services or termination of the Agreement, whichever occurs first.
DWS shall maintain appropriate insurances for as long as necessary to cover its obligations and liabilities under or in connection with the Agreement.
Either party may terminate the Agreement if the other party fails to remedy a material breach within ten (10) business days of written notice specifying the breach.
Upon termination, DWS shall be entitled to payment for all amounts due, all parts of the DWS Services performed, all reasonable costs incidental to orderly termination, and compensation for any reasonable loss or damage suffered as a result of termination (except where termination was caused by DWS’s breach).
The Client shall comply with all applicable anti-bribery and anti-corruption legislation including the U.S. Foreign Corrupt Practices Act, the UK Bribery Act, the UN Convention against Corruption, and equivalent local legislation.
Any disputes arising out of these Terms and/or the Agreement shall be governed by Australian Law. Disputes shall first be decided by mediation under International Chamber of Commerce (ICC) rules.
If mediation does not result in a settlement, the dispute will be decided by ICC arbitration, to be held in Sydney, Australia, in the English language. The prevailing party shall be reimbursed in full for all reasonable expenses including legal fees.
DWS shall at its sole discretion be entitled to have the DWS Services performed in whole or in part by subcontractors, and may assign any right or obligation to an affiliated company.
The Client may not assign the Agreement or its obligations to any third party without the prior written consent of DWS.
These General Terms & Conditions and the Agreement contain the entire agreement between the parties and supersede all prior or contemporaneous agreements, understandings, representations and statements, oral or written.
No amendments to these General Terms & Conditions shall be effective unless made in writing and signed by both parties.