TERMS AND CONDITIONS 

JAG FINANCE AND TECHNOLOGY (Pty Ltd)

1 August 2021

ABN 16154409711

ACN 154409711

1. Supply

1.1 JAG Finance & Technology Pty Ltd (ABN 16154409711), herein referred to as JAG FT agrees to supply the goods (“Products”) and services (“Services”) described in a proposal, statement of work or quotation to the Customer on these terms and conditions (“Terms”)

2. Order acceptance

2.1 Purchase orders for Products or Services constitute an acceptance by the Customer of JAG FT’s proposal, statement of work or quotation. Any amendments to purchase orders for Products or Services must be approved by JAG FT in writing to be effective. Only these Terms (no other terms and conditions which may be attached to or incorporated in a purchase order) form part of the agreement between the parties. JAG FT’s acceptance of a purchase order will not be taken as acceptance of any such terms or conditions.

3. Precedence

3.1 In the event of any inconsistency between the documents which make up the specification, they must be construed with the documents appearing earlier in the following list taking precedence over those appearing later:

a) This proposal and associated quotation;

b) The Statement of Work (if applicable);

c) The Project Control Documentation; and

d) Relevant emails and verbal agreements.

4. Prices and Payment.

4.1 Payment terms are strictly 30 days days from the date of invoice (unless otherwise specified on the invoice). Products will be invoiced on delivery. Services will be invoiced at the end of each week and on completion or as otherwise prescribed in the documents describing the Services to be supplied. Prices quoted are valid for 7 days from the date of the quotation unless otherwise specified in 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 invoice. Customer forfeits any discount, which JAG FT may have granted to Customer, if payment is not made to JAG FT by the due date. Payment must not be withheld pending the settlement of any claims or disputes.

5. Interest.

5.1 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 of Australia from time to time.

5.2 In the event of non-payment of accounts, any, and all costs relating to recovery of outstanding amounts will be that of the client.

6. Warranty.

6.1 JAG FT 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 Customer, as provided in the documents supplied by JAG FT or by the manufacturer or as otherwise published or

made known to the Customer. JAG FT at no charge to the Customer will rectify defects in Services reported to JAG FT within 30 days of delivery of the Service. JAG FT 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 JAG FT;

d) The performance of maintenance or attempted repair by persons other than JAG FT or as authorised by JAG FT;

e) Changes made to the deliverables created by performance of the Services or to the operating environment;

f) The relocation of Products by the Customer; or

g) Any configuration or reconfiguration by the Customer of the Products or other equipment with which the Products interface.

7. Delivery.

7.1 JAG FT must use its reasonable endeavours to deliver Products or Services to the Customer by the date agreed (not applicable for Time and Material proposals) but is not liable for any delays in delivery caused by matters beyond its control. Freight charges incurred by JAG FT in delivering Products to the Customer will be invoiced to the Customer at cost unless quoted otherwise.

8. Design Services.

8.1 If so indicated in the Proposal or Statement of Work, JAG FT must design the system and deliver a copy of the design documents to the Customer in accordance with the Statement of Work.

8.2 The Customer acknowledges that the design of the system may be subject to amendment after “proof of concept” testing and further agreement between the parties. The design documents must be amended by JAG FT to reflect any such amendments. Any amendments, which require a change in the Charges, must be treated as a Variation.

9. Compliance with Laws.

9.1 The Customer, must ensure that the specification set out in any Design Documents and the Statement of Work relating to the Products and Services, and the use of the Products and Services, satisfies all of the Customer’s legal and regulatory obligations and any other Customer compliance requirements including, without limitation, compliance by the Customer with any statute, regulation, corporate governance matters and internal company policies. Nothing in this agreement requires JAG FT to ensure, recommend or facilitate Customer’s compliance with any matter referred to in this clause, except to the extent prescribed in the Statement of Work and the Customer acknowledges that it has obtained its own advice on such compliance matters

10. Acceptance.

10.1 Unless the Customer gives, JAG FT written notice of any aspect of a deliverable, which is alleged by the Customer to be otherwise than in accordance with these Terms or any applicable specifications within 7 days of the date of delivery of that deliverable, the Customer is deemed to have accepted that deliverable on delivery. Where the Customer 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 JAG FT as required.

11. Variations.

11.1 Customer may request in writing that JAG FT performs:

a) Additional work to that required under this agreement; or

b) That work different from or inconsistent with this agreement be carried out,

c) And any such request will constitute a “Proposed Variation”.

11.2 Within a reasonable period of receiving a Proposed Variation from Customer, JAG FT will notify Customer of:

a) The cost of the Proposed Variation, calculated either on a time and materials basis at its then current rates or on a fixed price basis;

b) The delay (if any) to the delivery of Products or Services under this agreement which will result from the Proposed Variation; and

c) The required amendments to the Scope of Work and/or Project Plan (if any), if the Proposed Variation is agreed between the parties.

11.3 If JAG FT recommends a variation, it will submit a copy of the Proposed Variation to Customer together with a statement of the matters in clause 11.2.

11.4 If both parties agree to a Proposed Variation in writing (including the matters under 11.2), 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.

11.5 If the parties do not agree to a Proposed Variation in accordance with this clause:

a) JAG FT must meet its obligations in accordance with this agreement (unless JAG FT 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 Customer, Customer must pay JAG FT the reasonable costs of preparing the Proposed Variation and any associated documentation where the time involved was greater than eight person hours.

11.6 If the preparation of an estimate, quote or proposal for a Variation engages JAG FT personnel in more than 8 hours labour for one person, the time expended on preparation must chargeable to the Customer at the Rates.

11.7 Unless the Parties agree upon a fixed price for the Variation, labour for the Variation must be charged for in accordance with the Rates and Products must be charged as agreed between the parties.

11.8 JAG FT must not vary the work under this Agreement except as directed by the Customer and only if the Variation is within the general scope of this Agreement.

11.9 Any variation to these Terms must be in writing. JAG FT at its then current rates for those additional services will charge variations to any of the Services agreed to be supplied, unless otherwise agreed in writing.

12. Returns.

12.1 Products returned will only be credited to the Customer’s account if the return is authorised by JAG FT and the products are in their original packaging and in the same condition as delivered and only if received by JAG FT within 7 (SEVEN) days of delivery. JAG FT reserves the right to charge the Customer for any costs or losses incurred by JAG FT if Products which are not faulty are returned or returned without authorisation, returned later than 7 days from delivery or in a different condition to the condition the Products were in when delivered. JAG FT will use its best endeavours to minimise such costs and losses. A standard 10% handling fee will apply in all cases.

12.2 Any costs arising for the return of equipment, are for the account of the customer.

13. Risk and Insurance.

13.1 Risk of loss, theft, damage, deterioration or destruction of Products passes to the Customer upon the earlier of:

a) Delivery to the Customer;

b) The taking of possession by the Customer; and

c) The delivery to any carrier contracted to the Customer for delivery to the Customer.

14. Title.

14.1 Until the Products have been paid for in full, they remain the property of JAG FT. If the Customer fails to pay any moneys to JAG FT when due, JAG FT may immediately without notice or demand enter upon the Customer’s premises and take possession of the products. This right is without prejudice to any other rights that JAG FT may have.

15. Customer’s Obligations.

15.1 The Customer 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 Customer.

15.2 Will not make any offers of employment to Jag Group resources in kind, or otherwise for a period of 12 months from the date of contracted agreement.

16. Access to Locations.

16.1 JAG FT must be allowed reasonable access to each location during Business Hours for the purpose of meeting its obligations under this Agreement.

16.2 JAG FT must use reasonable endeavours to confirm the dates upon which access is required and the arrangements for such access prior to entering such Location.

16.3 JAG FT must be allowed access to any particular location for the purpose of this Agreement outside the Customer’s normal business hours only upon receiving the prior consent of the Customer.

16.4 The Customer must prepare the Locations 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 JAG FT;

c) Comply with the obligations of the Customer set out in the Statement of Work and/or the Project control documentation;

d) Provide appropriate environmental conditions; and

e) Provide a safe work environment for JAG FT’s personnel.

17. Delays.

17.1 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 17 must be followed.

17.2 If JAG FT believes at any time that it is unlikely to be able to provide the Customer with all or any of the Deliverables by the relevant due date for that Deliverable JAG FT must promptly notify the Customer in writing of that belief.

17.3 JAG FT’s notice must contain:

a) The reasons for the anticipated delay;

b) An estimate of the additional time that Supplier believes it will need to meet its obligations under this Agreement; and

c) Details of what JAG FT: · Intends to do to minimise the delay; and · Recommends be done by the Customer to minimise the delay. 17.4 Such notification will not relieve either party from any of its obligations under this Agreement.

17.5 Subject to clause 17.6, if JAG FT is likely to fail or fails to provide all or any of the Deliverables by the relevant due date JAG FT will promptly:

a) Commit such commercially reasonable additional resources at no additional cost to the Customer (including suitably qualified and experienced personnel) in order to:

b) 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

c) Reasonably ensure the provision of all subsequent Deliverables on time; and

d) 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: · Allocate a suitably qualified technical person to assist in overcoming the delay until the delay has been overcome; and · 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 Customer on the progress thereof; and · Implement any other procedures for the minimisation of delay as may be set out in the Project Control Documentation. 17.6 To the extent that the delay has been caused by an act or omission of or breach of this Agreement by the Customer or an act or omission of its contractors, JAG FT 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 17; 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 14 days.

17.7 If any Jag Group employee is unable to perform part of the Services as scheduled due to a failure by Customer to perform an obligation which is a pre-condition to the employee ‘s capacity to perform such Services then, for such period that JAG FT employee is prevented from such performance, JAG FT may invoice Customer at JAG FT’s hourly rate for such employee, provided that JAG FT must use its best endeavours to allocate the employee r(s) to other chargeable services and deduct the revenue received from those services from the amount claimed from Customer.

18. Confidentiality.

18.1 JAG FT and the Customer 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 JAG FT or the Customer.

19. Intellectual Property.

19.1 The Customer 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 JAG FT (or its supplier, where such rights are owned by that supplier). Software will be licensed to the Customer on the terms of the relevant licence agreement provided with the Product or as otherwise agreed between JAG FT and the Customer in writing. Any rights to be conferred on Customer will only commence on payment of all charges payable in connection with those rights.

20. Termination.

20.1 If the Customer:

a) Makes default in any payment or breaches any of these Terms;

b) Becomes unable to pay its debts as and when they fall due; or

c) 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,

20.2 JAG FT may without prejudice to any of its rights or remedies under these Terms or otherwise by notice to the Customer:

a) Suspend further supply and require payment in advance for future supply;

b) Recover possession of any Product for which payment has not been made;

c) Terminate all or any purchase orders for Products or Services which have been accepted by JAG FT;

d) Claim immediate payment of all moneys due by the Customer in respect of all Products and/or Services which will then be immediately due and payable notwithstanding the due date or dates for payment or any terms agreed by JAG FT; and/or

e) Continue to enforce its rights and recover from the Customer such payments and any other amounts owing as and when they fall due.

f) Fixed price engagements will be charged at the full rate proposed, notwithstanding the completion status of works. This will be payable on presentation of invoice.

g) Where an approved contract specifies ongoing or recurring costs, the contract termination fees will include all recurring costs to the extent of the months contracted. This will include, but is not limited to professional services; monthly recurring costs; hardware; software; licensing and any sundry costs as specified in the approved contract. In the event of cancellation JAG FT may claim all costs for the full specified term outlined in the proposal, invoices presented for the recovery of such costs will fall due for payment immediately.

21. No Representations.

21.1 The Customer acknowledges that JAG FT 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 JAG FT or not), unless provided in writing.

22. No Implied Terms.

22.1 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 JAG FT for a breach of a condition or warranty implied into these Terms by the Trade Practices Act, 1974 is limited at the option of JAG FT:

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.

23. Limitation of Liability.

23.1 JAG FT is not liable to the Customer for any indirect or consequential damages, loss of profits, revenue, data or use arising out of or in relation to the supply of Products and/or Services, even if JAG FT knew or should have known of the possibility of such loss or damage and whether damages are claimed in contract, tort (including negligence) or statute.

23.2 Except in relation to liability for personal injury (including sickness and death), or damage to tangible property, JAG FT’s liability to the Customer in respect of any loss or damage (including consequential or indirect loss or damage) which may be suffered or incurred or which may arise directly or indirectly in respect of the supply of Products and/or Services or in respect of a failure or omission on the part of JAG FT to comply with its obligations is, in aggregate, limited to an amount equal to the amount paid by the Customer to JAG FT under the relevant statement of work or purchase order.

24. General.

24.1 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) Electronic delivery with proof of delivery/receipt;

b) Posting, three days after dispatch; and

24.2 No leniency, indulgence or extension of time granted by JAG FT to the Customer will prejudice any of JAG FT’s rights in any way or constitute a waiver of any of JAG FT’s rights.

24.3 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.

24.4 These Terms are governed by the laws of Queensland and the parties agree to submit to the non-exclusive jurisdiction of the courts of Queensland.

24.5 In the event of non-payment, the customer accepts liability for any, and all costs related to debt recovery proceedings, which JAG FT may undertake. This includes, but is not limited to agency and legal fees that are incurred in the recovery of outstanding amounts owed to JAG FT.

25. Taxes and GST.

25.1 The amount payable to JAG FT 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 Customer is liable for any GST and any new or varied taxes, duties or charges imposed subsequent to JAG FT’s quotation or proposal in respect of the supply of the Products and Services. JAG FT will issue a valid tax invoice where GST is to be recovered.

 

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