Statement of Works Terms and Conditions

1. Agreement

Jalarem Pty Ltd T/as Bloocow (114549227) (Bloocow ) has been appointed by the Client to provide the Services in accordance with the Statement of Work and these Terms and Conditions (together the Agreement).

 

2. Appointment

  • 2.1 Client appoints Bloocow as its service provider from the date of this Agreement until the date on which this Agreement is terminated in accordance with these Terms and Conditions.
  • 2.2 Services and Fees will be described in a Bloocow proposal for each component of work (Proposal). Each Proposal is an offer to provide Services for the Fees in accordance with this Agreement.
  • 2.3 Upon Client signing a Proposal, or indicating approval of a Proposal, by email or otherwise in writing, the Services and Fees set out in a Proposal become binding.
  • 2.4 Client acknowledges and agrees that the appointment is non-exclusive and that Bloocow may be engaged by other people to provide services (including services similar to the Services).

 

3. Using the Services

  • 3.1 Client agrees to use the Services: (a) for Client’s legitimate business purposes only; (b) in accordance with Bloocow ’ instructions; (c) without disrupting the provision of the Services to Client or other Bloocow customers; (d) in good faith and not fraudulently, unlawfully, dangerously, or in such a way that may infringe the privacy or intellectual property rights of Bloocow, its personnel, Client’s employees, contractors or customers, or any other person.
  • 3.2 If Client is using the Services for the benefit of others (including its directors, employees, officers, contractors, volunteers, representatives or any other person), Client agrees to ensure that each such person uses the Services in accordance with clause 3.1.

 

4. Fees & Expenses

  • 4.1 Client agrees to pay Bloocow the Fees as set out in the Fee Schedule.
  • 4.2 Bloocow may incur expenses that are directly attributable to providing the Services (including without limitation travel, accommodation, equipment or other administrative expenses) (Expenses). Client agrees to pay all properly incurred Expenses, provided that individual Expense items must be approved by the Client prior to being incurred
  • 4.3 Bloocow y will invoice the Client the Fees and Expenses as notified by Bloocow . Client agrees to pay Bloocow the amounts invoiced within 14 days of receiving an invoice.
  • 4.4Client agrees that all Fees or Expenses not paid in full on the due date are debts due and payable immediately. Client agrees to pay all of Bloocow ’s reasonable costs of recovering such debts (including without limitation reasonable debt collection agency and legal fees).
  • 4.5 The Fees will be paid in cash, without set off (unless agreed by Bloocow ).

 

5. Goods and Services Tax (GST)

  • 5.1 Except where this Agreement states otherwise, and if applicable, each amount payable by the Client under this Agreement in respect of a taxable supply by Bloocow is expressed as a GST exclusive amount and the recipient of the supply must, in addition to that amount, and at the same time, pay to Bloocow the GST payable in respect of the supply.
  • 5.2 The Client’s obligation to pay an amount under clause 5.1 is subject to a valid tax invoice being delivered by Bloocow.
  • 5.3 For the purposes of this clause 5: “GST” has the meaning given to it in the GST Act; and “GST Act” means the A New Tax System (Goods and Services Tax) Act 1999 (Cth).

 

6. Warranties, Representations and Information

  • 6.1 Bloocow warrants and represents to the Client that: (a) Bloocow will exercise all due care and skill in performing the Services or other work under this Agreement; (b) the Services will be performed in a timely and professional manner by personnel who are suitably qualified and experienced to perform the Services; and (c) Bloocow will comply with all applicable laws in its performance of this Agreement.
  • 6.2 The Client warrants and represents to Bloocow that: (a) the Client is able to pay its debts as and when they fall due; (b) Client will comply with all applicable laws in its performance of this Agreement; (c) the Client is the owner or licensee of the data and information in relation to Services performed under this Agreement; (d) all information given by the Client to Bloocow is true, complete and accurate in all respects and does not infringe the Intellectual Property Rights (as defined in clause 9) of any person.
  • 6.3The Client agrees to provide all information and documents that are relevant to the Services and agrees to bring to Bloocow’ attention any matters about which the Client is uncertain. Bloocow will not independently verify the accuracy of such information or documents. The Client agrees that Bloocow will not be liable for any loss or damage arising from reliance on, or inaccuracy or defect in, any information or document supplied by or on behalf of the Client.
  • 6.4 Bloocow provides the Services “as is”. Except for the express warranties contained in this Agreement, Bloocow disclaims and excludes to the maximum extent permitted by law in respect of the Services, all implied terms or representations in respect of the Services, including without limitation any representation that the Services will produce any outcome, benefit or effect or will be fit for a particular purpose.
  • 6.5 Bloocow does not control the activities, products or services of any entity other than itself, such as providers of any cloud software, applications, payment systems, data, networks or telecommunications (Third Party Provider). Bloocow does not warrant the quality, care, skill, or fitness for purpose of anything provided to the Client by any Third Party Provider.

 

7. Third Party Providers

  • 7.1 Bloocow may require that the Client, at its expense, obtain any required licence from a Third Party Provider directly. In this instance, the Client enters into a direct contractual relationship with the Third Party Provider and Bloocow is not a party to that relationship. Reading and understanding any Third Party Provider licence terms is the sole responsibility of the Client.
  • 7.2 In some cases, Bloocow may sublicense to the Client software or solutions provided to Bloocow by a Third Party Provider. In this instance, the Client acknowledges that any such software or solution is provided to the Client by Bloocow subject to certain limitations and the Client agrees to comply with all reasonable directions given by Bloocow in respect of the use of the relevant software, including compliance with the Third Party Provider’s terms of use or end-user licence agreement (if applicable).
  • 7.3 Bloocow will provide the Client with notice in writing if the cost of obtaining any licences, software or services from any Third Party Provider or other third party is not included in the Fees as agreed in a relevant Statement of Work, and will not incur any such fees without the Client’s approval.
  • 7.4The Third Party Provider Products, software and services are supplied or recommended by Bloocow strictly on an “as is” basis, and Bloocow will not be liable for any error, failure, delay or interruption in the supply of any such software or services, or any resulting loss. Without limiting the foregoing, Bloocow will not be liable for or any loss, damage, cost, or claim suffered or incurred by the Client in connection with the use of a Third Party Provider’s software or services, except to the extent that such loss, damage, cost, or claim is caused by a negligent act or omission of Bloocow. Bloocow ’s sole obligation to the Client in relation to any failure, defect, or error in a Third Party Provider’s products or services is to assist the Client in obtaining software support from the Third Party Provider in relation to the affected software.

 

8. Confidentiality

  • 8.1 In this clause 8, “Confidential Information” means all copyright, registered and unregistered trade marks, logos, registered and unregistered designs, patents, trade secrets, ideas, concepts, know how, knowledge and any other information, whether in writing or otherwise of or concerning a party or its employees, agents, or contractors under, in contemplation of or in connection with the Services, and “Confidential Information” includes the terms of this Agreement.
  • 8.2 Each party acknowledges that it may receive Confidential Information of the other party and agrees to keep that Confidential Information secret, protect and preserve its confidential nature, and not use it or disclose it to any person (or allow or assist or make it possible for any person to observe or have access to it), except to the extent necessary to obtain professional advice in relation to the Services, to comply with this Agreement, or as required by laws or regulations.
  • 8.3Notwithstanding any provision in this Agreement, the Client agrees that Bloocow may, with the Client’s prior written consent, refer to the Client as a client of Bloocow in its sales and marketing information and may use the Client’s logo in such literature from time to time.
  • 8.4The provisions of this clause 8 continue in force notwithstanding completion of the Services or the termination for any reason of this Agreement.

 

9. Intellectual Property

  • 9.1 Nothing in this Agreement affects the ownership of any Intellectual Property Rights owned by either party as at the date of this Agreement.
  • 9.2 Client grants to Bloocow a royalty-free, non-exclusive licence during Bloocow ’s engagement to use the Client’s existing intellectual property for the sole purpose of providing the Services.
  • 9.3All Intellectual Property Rights created for the purposes of, or arising as a result of, the performance of the Services or this Agreement (Services IP) will be owned by Bloocow , unless otherwise agreed in writing by the parties.
  • 9.4Subject to payment of the Fees in accordance with clause 4.1, Bloocow grants the Client a personal, non-exclusive and royalty-free licence to use the Services IP for the Client’s business purposes only.
  • 9.5In this Agreement, “Intellectual Property Rights” means all present and future intellectual property or other rights, including copyright, trade mark, designs, patents, circuit layouts, business or domain names, inventions, know-how, confidential information and trade secrets, or moral rights arising anywhere in the world and whether registered or unregistered.

 

10. Privacy

  • 10.1 Bloocow will collect, use, hold, and disclose personal information generally in accordance with its privacy policy . Personal information collected by Bloocow in performance of this Agreement will be treated as Confidential Information for the purposes of clause 8, and will only be collected, used, held, or disclosed for the purposes of providing the Services, and otherwise with consent of the Client. The Client warrants that it has obtained the consent of any relevant person to:
    1. (a) disclose any personal information constituting the Client Information, or otherwise provided in connection with this Agreement, to Bloocow (including its employees, contractors, and the Third Party Providers); and
    2. (b) Bloocow (including its employees, contractors, and the Third Party Providers) using and disclosing any personal information constituting the Client Information, or otherwise provided in connection with this Agreement, in providing the Services (including after the termination or expiration of this Agreement).
  • 10.2 Both parties agree to comply with the applicable provisions of the Privacy Act 1998 (Cth), the SPAM Act 2003 (Cth), and any other applicable law in dealing with any information provided by the other party.

 

11. Termination

  • 11.1 Either party may terminate this Agreement immediately upon notice to the other party (the Relevant Party) if:
    1. (a) the Relevant Party commits a material breach of this Agreement which is incapable of being remedied or, if the breach is capable of being remedied, the Relevant Party fails to remedy the breach within 7 days after being required in writing to do so;
    2. (b) the Relevant Party or any of its employees, agents or representatives commits an act of dishonesty, serious misconduct or serious neglect of duty in connection with the Services; or
    3. (c) the Relevant Party enters or threatens to enter into bankruptcy, liquidation or other type of insolvency.
  • 11.2 Bloocow may terminate this Agreement if the Client fails to pay on or by the due date for payment any Fees, Expenses or other amounts due in accordance with this Agreement.
  • 11.3 Either party may terminate this Agreement at any time and for any reason provided that the Relevant Party is given 60 days written notice of termination.
  • 11.4 Termination of this Agreement does not affect the Client’s obligation to pay the Fees and Expenses.
  • 11.5 Upon termination in accordance with this Agreement and as soon as practicable after payment in full of all Fees and Expenses owed to Bloocow in accordance with this Agreement, Bloocow will:
    1. (a) provide the Client with copies of all required authorisations, passwords, or access keys held by Bloocow and necessary to allow the Client to access products, platforms, or services managed for or supplied to the Client by Bloocow under this Agreement (but only to the extent that the Client retains ownership of or a right to use those products, platforms, or services post-termination); and
    2. (b) no longer provide to Client the terminated Services (and if applicable, will no longer use, store or deal with the Client’s Confidential Information or Client Data), unless and to the extent that the actions described in clause 11.5(a) are prohibited or limited by law.

 

12. Liability

  • 12.1 To the maximum extent permitted by law, Bloocow limits its liability to Client: (a) under any applicable consumer guarantees in the Australian Consumer Law (contained in Sch 2 of the Competition and Consumer Act 2010 (Cth)) to either, at Bloocow’s discretion, the supply of the relevant Services again or the payment of the cost of having those Services supplied again; and (b) under this Agreement and/or arising out of or related to any Services for breach of agreement, negligence, breach of statutory duty or any other cause of action other than a breach of an applicable consumer guarantee is (regardless of how that liability is caused), to the total Fees paid by Client for the relevant Services.
  • 12.2 Nothing in this Agreement will limit a party’s liability to any claims or other losses based on or arising from personal injury or death.
  • 12.3 Client agrees that Bloocow will not be liable for any consequential, collateral, special, incidental, indirect, exemplary or punitive damages, including, without limitation, loss of profits or revenue, loss of data, loss of opportunity or use, damage, loss or destruction of data, costs of cover, costs of delay, however caused and based on any theory of liability, for any claims or causes of action arising out of or related to this Agreement or the Services. These limitations will apply even if a party has been informed of the possibility of such damages or any other liability which cannot be excluded or limited by law.

 

13. Dispute Resolution

  • 13.1 A party must not commence court proceedings in relation to a dispute until it has exhausted the procedures in this clause 13, unless the party seeks urgent injunctive or interlocutory relief.
  • 13.2 If a dispute arises between the parties, either party may give notice of the dispute (Dispute Notice) to the other party. If a Dispute Notice is given:
    1. (a) the Client’s representative and Bloocow ’s representative must negotiate as soon as possible in an effort to resolve the dispute;
    2. (b) if the dispute is not resolved within 7 days of the Dispute Notice being given, the Managing Directors (or equivalent) of the parties must meet and attempt to resolve the dispute within 14 days; and
    3. (c) if the dispute is not resolved within 21 days of the Dispute Notice being given, Bloocow will instruct the President of the Law Institute of Western Australia (or equivalent) to appoint an independent mediator to resolve the dispute by mediation and the parties must participate in the mediation in good faith.
  • 13.3 The parties must continue to perform their obligations under this Agreement despite the existence of a dispute or any steps being taken under this clause 13.

 

14. General

  • 14.1 Subcontractors: Client agrees that Bloocow may engage subcontractors or other professional consultants to assist Bloocow to provide the Services.
  • 14.2 No employment: Nothing contained in this Agreement constitutes the relationship of partnership or employment between the parties and it is the parties’ express intention to deny such relationships.
  • 14.3 Assignment: A party may by written notice to the other party assign, transfer, subcontract or otherwise dispose of, in whole or in part, its rights under this Agreement.
  • 14.4 Variation: This Agreement may only be amended or modified in writing signed by the parties.
  • 14.5 Notices: Any notice or demand to be given or made under this Agreement must be in writing signed by a party’s authorised representative.
  • 14.6 Governing law: This Agreement must be construed in accordance with the laws of Western Australia and the rights and obligations of the parties under this Agreement will be governed by the laws of Western Australia
  • 14.7 Entire agreement: It is expressly acknowledged, by and between the parties, that the Terms and Conditions and the Statement of Works forming this Agreement contain the entire agreement concluded between the parties.
  • 14.8 Defined terms: All capitalised terms not otherwise defined in these Terms and Conditions are as defined in the Statement of Works.