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Du Marche Capital
TERMS AND CONDITIONS
Clients can expect to receive their
accounts by the 14th of each month and accounts are payable within 14 days. Concept fees
are billed on completion of the strategic plan; retainers and project fees are billed
monthly in advance. Expenses are payable normally 7 days after they are incurred.
TERMS OF BUSINESS
- An estimate of our charges for this assignment is provided
in the Proposal attached. This estimate is not to be construed as an offer to perform the
assignment within a fixed time or fixed price. As we have no control over the outside
professional services used and the time that may be involved, the charge for our service
in relation to the assignment may vary from any estimate made by us.
- All charge for our services in relation to this assignment
are for Consultant time spent on this assignment whether at Du Marche premises or
elsewhere. The estimate of charges provided is based on fee rates and costs current at the
time of the Proposal. Actual charges to you will be based on fee rates at the time of
rendering any of our services and will take account of costs at that time, but any changes
affecting the estimates in this Proposal will be notified in advance. Should a need arise
during our work for services beyond those indicated in the Proposal, their use will be
subject to agreement before additional expenditure is incurred. Materials, the service of
outside establishments, and the use of their equipment and other project expenses are
charged at cost unless free issued by you or directly invoiced by you. These charges are
payable in addition to any charges made by us in relation to this assignment.
- An advance on fees as specified in the foregoing proposal
will be invoiced on authorisation to proceed. Further invoices will then be issued monthly
for fees and expenses incurred, and a balancing invoice or credit note will be issued on
completion of the assignment. The initial invoice is payable prior to the start of work.
All subsequent invoices are payable within 14 days of invoice date.
- Fees in respect of services rendered will be subject to the
addition of any taxes or duties which may apply from time to time.
- Our services in relation to the assignment may be
terminated by us or by you by one month's advance notice in writing.
- All information contained, and all survey forecasts and
recommendations made in this proposal, and any other report or letter to you are supplied
and made in good faith upon the basis of information made available to us in relation to
this assignment will be of commercial value to you, but we do not warrant or represent
that any of it is accurate, fully comprehensive in its field or suitable to your purposes;
nor do we warrant or represent that survey forecasts made by us in relation to this
assignment are accurate or will be realised, since the achievement of results forecast
must depend upon matters outside our control, including the effective co-operation of your
staff and the availability of materials. You agree that before implementing the results of
the provision of our services in relation to this assignment, you will verify the
suitability for your purpose of such results.
- No statement by us in this proposal or in any report or
letter to you in to be construed as a representation, undertaking, warranty or contractual
condition.
(i) Your attention is drawn to Section
68A of the Trade Practices Act 1974 ("the Act") which has the effect of enabling
those who have contracted to supply services to limit their liability in certain
circumstances for breach of certain of the conditions and warranties implied by the Act.
Subject to the qualifications in Section 68A of the Act, our liability for any breach of a
condition or warranty implied by Division 2 or Part V of the Act (other than a condition
or warranty implied by Section 69 of the Act) shall be limited to one of the following as
we determine:-
the re-supply of our services in
relation to this assignment; or
- the payment to you of the cost of having services in
relation to this assignment re-supplied; and
(ii) Save as provided in (1) hereof, we shall not be
liable to you or to any other company, firm or person for, or in respect of, any direct,
indirect or consequential loss or damage suffered by you or them arising out of, or in
connection with, or relating to the provision of our services in relation to this
assignment for any inaccuracy (whether negligent or not) in information supplied to you at
any stage during the provision of our services in relation to this assignment.
"Consequential loss" shall include but not be limited to loss of profit or
goodwill (or similar financial loss) and payment made or due to any third party and any
loss or damage caused by delay in the supply of our services in relation to the
assignment.
You shall furnish to us all
information, data, drawings, descriptions and the like relating to your business and to
this assignment as are reasonably required by us to enable our services to be provided in
relation to Consultants employed by us or otherwise engaged in the provision of services
to you in relation to the assignment for the purpose of ascertaining all matters that may
reasonably be considered by us to be relevant to the assignment. Nothing in these terms of
business shall impose on you to disclose information relating to your finance, general
overheads, business connections or arrangements where this information is not relevant to
this assignment. You shall identify us in respect of any loss, damage or injury arising
out of any claim made against us alleging misuse of a third party's confidential
information or copyright material, in the event that the information or material concerned
was received by us from you.
- We will use our best endeavours to preserve the
security and secrecy of information supplied to us by you which you designate as
confidential information. Nothing in these terms of business shall impose on us the
obligations not to disclose information already known to us prior to its disclosure to us
by you, or lawfully received by us from a third party, or information published at the
date of such disclosure, or published subsequently through no fault of ours.
- Our professional staff are under agreement not to
seek or accept employment with our clients, and it is a condition of our engagement by you
to provide our services in relation to this assignment that neither you nor any firm or
company associated with you will employ or offer to employ any member of our professional
staff.
- We draw to your attention the fact that patents and
the registration of designs may confer on the holder substantial protection, including
rights to damage in the case of subsequent infringement by others whether intentional or
not. We will arrange to carry out searches at appropriate stages of the provision of
services in relation to this assignment in order to identify potential infringements of
prior patents or design registrations as and when commissioned by you to do so. Where no
such specific request is made, it is understood that you have assumed responsibility for
this aspect of the project and that you indemnify us against any claims of infringement if
any patent or registered design that may be made as a result of the provision of our
services in relation to this assignment.
- Subject to the completion of all phases of this
assignment and to the payment of all fees due to us by the client in respect of the
assignment or otherwise we may assign to you any patents or other industrial property
rights arising directly from the provision of our services in relation to this assignment.
Where such patents or other industrial property rights extend (or in the case of patents
are, subsequent to the date of transfer, amended to extend) to applications which are
outside the terms of this proposal, we shall be free to exploit such rights in respect of
these other applications, whether in the provision of our services for other clients or
otherwise without payment for fee or royalty to you. You hereby grant us an irrevocable
non-exclusive licence to this effect and you agree that such licence will enable us to
sub-licence our rights thereunder to other clients and you agree to execute all
instruments as may be necessary or desirable to evidence, protect, enforce or defend our
right, title or interest in such patents or industrial property rights.
- Nothing is these terms of business shall constitute
a warranty that the results of our services in relation to this assignment will be capable
of protection under the Patents Act 1952, or the Designs Act 1906 and we do not warrant
that our work will be outside the scope of any patent or design existing under that
legislation. We shall not be liable to you for an failure by us whether negligent or
otherwise, to lodge any application for a patent under the Patents Act 1952 or application
for registration of a design under the Designs Act 1906, relating to the results of the
provision of our services in relation to this assignment.
- In these terms of business "you" shall be
taken to refer to the client for whom this assignment was undertaken and "you"
shall have corresponding meaning.
- We deal only in these terms of business and, to the
extent which there is any inconsistency between these terms and any other terms submitted
by you, these terms shall prevail.
- These terms of business shall be construed in
accordance with the law in force in the State of Victoria, Australia and you hereby agree
to submit any dispute to the courts of that State for adjudication.
Acceptance of the above terms and the
attached Contract are by the signing hereof and the initialling of each page by the
signatories that ensuring that all points have been read and agreed to by all parties.
SIGNED BY
FOR AND ON BEHALF OF
AND AGREED BY BOARD MINUTE OF
WITNESS:
Signature
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SIGNED BY
FOR AND ON BEHALF OF
DU MARCHE CAPITAL
WITNESS:
Signature
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