TERMS & CONDITIONS (General Terms)
These General Terms are between Baseline JS Pty Ltd (Base, we, us, our) and the Customer (you, your) that has executed a Proposal or Custom Collaboration Form that incorporates these General Terms by reference. You agree that the Schedules (as defined below) that are attached to these General Terms are incorporated into these General Terms.
1. Formation
1.1 We agree to sell and provide Software and Services and you agree
to purchase and accept the Software and Services, in accordance with
the Agreement.
1.2 Unless otherwise agreed in writing by us, the Agreement comprises
of these General Terms, Proposal or Custom Collaboration Form (if any,
including any variations thereto), the Schedules and our documents. As
of the Effective Date, the following Schedules are incorporated into
the Agreement: Schedule E – End User License Agreement and Schedule S
– Services.
1.3 If there is any inconsistency between the provisions of these
General Terms, the Proposal or Custom Collaboration Form, Schedules
and our documents, the inconsistency will be resolved by applying the
provisions of the Custom Collaboration Form or Proposal, these General
Terms, Schedules, followed by our documents, to the extent of the
inconsistency.
1.4 The Agreement constitutes the entire agreement between us in
regards to the Software and Services supplied by us to you, and
supersedes all prior understandings, arrangements and agreements with
respect to the subject matter of the Agreement.
1.5 Unless we agree in writing to the contrary, no Customer Provisions
form part of the Agreement. If we agree in writing that some or all of
the Customer Provisions are to form part of the Agreement, then in the
event there is any inconsistency between the Customer Provisions and
the other provisions of the Agreement, the provisions of the Agreement
will prevail to the extent of the inconsistency.
1.6 You can accept this Agreement by the earlier of (Effective
Date):
(a) signing and returning the Agreement to us;
(b) confirming by email that you accept the Agreement;
(c) confirming that you accept this Agreement via the platforms or
applications through which we provide this Agreement to you, including
our website;
(d) instructing us in writing to proceed with the provision of the
Services; or
(e) making part or full payment of the fees set out in the Proposal or
Custom Collaboration Form including expenses, if any.
2. Ownership
2.1 Base, Baseline or our licensors retain all ownership and
intellectual property rights to the Software, Services, and anything
developed or delivered under the Agreement.
3. Warranties, Conditions or Guarantees
3.1 To the maximum extent permitted by law and except for the express
warranties in this Agreement, we provide the Software and Services on
an "as-is" basis. We disclaim and make no other representation,
promise, assurance, undertaking or warranty of any kind, express,
implied or statutory, including representations, guarantees,
conditions or warranties of merchantability, satisfactory quality,
fitness for a particular purpose, title, non-infringement, or
accuracy.
3.2 We warrant that all Services provided by us will be provided with
due care and skill. We will resolve faults discovered during the
warranty period. A fault is defined as non-compliance to the
documented requirements with reference to what has been included in
the scope of work. Warranty expires 5 Business Days from date of
delivery. To the extent permitted by law, your sole and exclusive
remedy for breach of this warranty and our sole liability under or in
connection with this warranty will be re-performance of the relevant
Services.
3.3 Despite anything to the contrary, we will not be liable for, and
you waive and release us from and against, any Liability caused or
contributed to by, arising from or connected with:
(a) your or your personnel’s acts or omissions, including any
instructions provided by you;
(b) any use or application of the Services by a person or entity other
than you, or other than as reasonably contemplated by this Agreement;
(c) any works, services, goods, materials or items which do not form
part of the Services (as expressed in this Agreement), or which have
not been provided by us;
(d) the loss of, corruption to, or errors in the Data;
(e) any virus, fault or defect in any item in your System;
(f) the Services being unavailable, or any delay in us providing the
Services to you, for whatever reason; or
(g) any event outside of our reasonable control.
3.4 If you are an Australian consumer, our goods and services come
with guarantees that cannot be excluded under the Relevant
Legislation. You are entitled to a replacement or refund for a major
failure and for compensation for any other reasonably foreseeable loss
or damage. You are also entitled to have the goods or services
repaired or replaced if the goods or services fail to be of acceptable
quality and the failure does not amount to a major failure.
4. Limitation of Liability
4.1 To the maximum extent permitted by law:
(a) neither Party will be liable for Consequential Loss;
(b) a Party’s liability for any Liability under this Agreement will be
reduced proportionately to the extent the relevant Liability was
caused or contributed to by the acts or omissions of the other Party
(or any of its Personnel); and
(c) our aggregate liability for any Liability arising from or in
connection with this Agreement will be limited to us resupplying the
Services to you or, in our sole discretion, repaying you the amount of
the fees paid by you in respect of the supply of the relevant Software
or Services to which the Liability relates.
5. Term and Termination
5.1 The Agreement term shall be defined in the Proposal or Custom
Collaboration Form. For recurring Services or Software on a
subscription basis, the term will automatically renew for successive
one-year periods, or as otherwise set out in the Proposal or Custom
Collaboration Form.
5.2 This Agreement will terminate immediately upon written notice
by:
(a) us, if:
(i) you (or any of your Personnel) breach any provision of this
Agreement and that breach has not been remedied within 20 Business
Days of being notified by us;
(ii) you fail to provide us with clear or timely instructions or
information to enable us to provide the Services; or
(iii) for any other reason outside our control which has the effect of
compromising our ability to provide the Services; and
(b) you, if we:
(i) are in breach of a material term of this Agreement, and that
breach has not been remedied within 20 Business Days of being notified
by you.
5.3 Upon expiry or termination of this Agreement:
(a) we are discharged from any further obligations under the
Agreement;
(b) you agree that any payments made by you to us are not refundable
to you, and you are to pay for all Software and Services provided
prior to termination, including Services which have been provided and
have not yet been invoiced to you, and all other amounts due and
payable under this Agreement;
(c) in the case of Software licensed on a subscription basis, you are
required to immediately cease using the Software and delete all copies
of it;
(d) each Party agrees not to disparage or otherwise make any
unfavourable statements or comments regarding the other Party, their
Personnel, their clients, either directly or by implication, verbally
or in writing; and
(e) each Party agrees to promptly return to (where possible), or
delete or destroy (where not possible to return), any of the other
Party’s property (including any Confidential Information, and any
Intellectual Property).
5.4 We will retain your documents (including copies) as required by
law or regulatory requirements. Your express or implied agreement to
this Agreement constitutes your authority for us to retain or destroy
documents in accordance with the statutory periods, or on expiry or
termination of this Agreement.
5.5 Termination of this Agreement will not affect any rights or
liabilities that a Party has accrued under it.
6. Suspension of Services
6.1 We may, by written notice, suspend the provision of any or all
Services, if any undisputed charges due to us under this Agreement
become overdue by more than 30 days.
6.2 Once all outstanding charges are paid by you, we will end the
suspension.
6.3 The right to suspend under this clause 6.1 is in addition to, and
not instead of, our rights to terminate this Agreement under clause
5.2. We are not obliged to exercise our rights to suspend under this
clause 6.1 as a precondition to exercising any right of termination
under clause 5.2, and exercising of our rights to suspend under this
clause is without prejudice to any right of termination under clause
5.2.
7. Delivery
7.1 Software Delivery. Except as otherwise provided in a Proposal or
Custom Collaboration Form, Software will be made available to you for
electronic access within thirty (30) days from the execution date of
the Agreement. Upon making the Software available via electronic
access, our delivery obligations shall be considered discharged.
7.2 Services Delivery. When providing Services as outlined in a
Proposal or Custom Collaboration Form, we may utilise a combination of
remote and onsite services.
8. Charges & Payment
8.1 You agree to pay us the fees set out in the Proposal or Custom
Collaboration Form.
8.2 Recurring Services and subscription Software fees are subject to
an annual increase based on the Consumer Price Index (CPI) on each
anniversary from the Effective Date of the Agreement.
8.3 All charges are due and payable within 14 days of the date of
invoice and are not refundable.
8.4 Overdue payments will attract interest at the annual rate of 3%
above the prevailing base lending rate provided by our principal
banker.
8.5 Unless otherwise agreed in writing by us, payment for Services are
due prior to the performance of the Services.
8.6 Recurring Services charges including maintenance and support
services are invoiced fortnightly or as otherwise specified in the
Proposal or Custom Collaboration Form.
8.7 If you fail to make a payment in accordance with this Agreement,
we may, in our sole discretion refuse further supply under the
Agreement and/or terminate the Agreement without notice.
8.8 If you believe in good faith that we have incorrectly invoiced
you, you must contact us in writing within 14 days of the invoice date
specifying the error or request for clarification of the invoice,
failing which the invoice shall be deemed to be correct and shall be
due for payment in full forthwith.
8.9 All charges are exclusive of taxes, duties, fees or other
government levies or charges, including without limitation any GST,
stamp duty or otherwise, which may be imposed on or in respect of
Software or Services provided under this Agreement. Such taxes,
duties, fees or other government charges shall to the extent
permissible by law be paid by you to us.
9. Confidentiality
9.1 The receiving Party will treat Confidential Information with
reasonable care and disclose only on a need to know basis or as
permitted under this Agreement. The receiving Party will only use
Confidential Information for the purposes of performing its
obligations or as permitted under this Agreement. However, a receiving
Party may disclose Confidential Information of the disclosing Party:
(a) if approved in writing by the disclosing Party;
(b) if required by law or regulation;
(c) in the event of dispute between the Parties, as necessary to
establish the rights of either Party; or
(d) as necessary to provide the Deliverables to the Customer.
In the case of subclause (b) and (c), the receiving Party will provide
reasonable advance notice to the other party and provide reasonable
assistance to limit the scope of the disclosure unless prohibited by
law or regulation.
10. Your responsibilities
10.1 You agree to:
(a) comply with this Agreement, our reasonable requests or
requirements, and all applicable laws;
(b) provide all assistance, information, documentation, access,
facilities, authorities, consents, licenses and permissions reasonably
necessary to enable us to comply with our obligations under this
Agreement or at law, including access to your premises if
necessary;
(c) provide and maintain any items to be supplied by you at the times
and in accordance with the requirements stated in the Proposal or
Custom Collaboration Form, including enforcement of any agreement with
a third party under which products or services (including but not
limited to license, support and maintenance agreements) of that third
party are being provided to us; and
(d) be responsible for complying with any applicable industry codes or
standards.
10.2 If the provision of the Services depends on you carrying out your
obligation under clause 10.1(b) and you breach your obligation under
clause 10.1(b), we will be entitled to an extension of time in respect
of any deadline or milestone to the extent of the delay caused by the
you.
11. Non-Solicitation
11.1 During the period commencing on Effective Date and expiring
twelve (12) months after the termination of this Agreement (Restraint
Period), you shall not solicit for employment, whether directly or
indirectly through an associated or subsidiary company or otherwise,
any person who is or was employed or contracted by us during the term
of this Agreement.
11.2 You shall promptly advise us if a person who is or was employed
or contracted by us seeks to be employed or contracted by you prior to
the expiration of Restraint Period.
11.3 During Restraint Period, we shall not solicit for employment,
whether directly or indirectly through an associated or subsidiary
company or otherwise, any person who is or was employed or contracted
by you during the term of this Agreement.
11.4 We shall promptly advise you if a person who is or was employed
or contracted by you seeks to be employed or contracted by us prior to
the expiration of Restraint Period.
11.5 The parties agree that the amount paid to the personnel in the
twelve (12) months preceding a breach of clause 11.1or 11.3 (the
“Fixed Damages”), is a reasonable estimation of damage caused by a
breach of clause 11.1or 11.3 by either party. Therefore, the parties
agree to pay the affected party the Fixed Damages as liquidated
damages for any breach of clause 11.1or 11.3.
12. General
12.1 Amendment. This Agreement may only be amended by written
instrument executed by the Parties.
12.2 Assignment, Novation and Sub-Agreements. A Party may only assign,
novate, sub-license or sub-contract its rights and obligations under
this Agreement with the prior written consent of the other party,
which will not be unreasonably withheld.
12.3 Counterpart. This Agreement may be executed in one or more
counterparts taken together constitutes the same agreement. The
Parties may sign this Agreement using an electronic or handwritten
signature, which are of equal effect, whether on original or
electronic copies. This Agreement may be executed by means of such
third-party online document execution service as we nominate.
12.4 Disputes. If a dispute arises, the parties must attempt to
resolve it by discussion and negotiation, and through mediation before
commencing legal proceedings. If the Parties cannot agree on a
mediator, the dispute will be referred to the President, Australian
Commercial Disputes Centre, Sydney to nominate a suitably qualified
mediator. Nothing in this clause will operate to prevent a Party from
seeking urgent injunctive or equitable relief from a court of
appropriate jurisdiction.
12.5 Entire Agreement. This Agreement constitutes the entire agreement
between the parties for the subject matter referred to in this
Agreement. Any prior arrangements, agreements, representations or
undertakings are superseded. This Agreement is not to be construed as
creating a joint venture, partnership or agency situation between the
Parties and neither Party may represent such. Under no circumstances
may any Party obligate or bind the other Party to any agreements,
arrangements, contracts or understanding or represent that they have
such authority.
12.6 Force Majeure. We will not be liable for any delay or failure to
perform our obligations under this Agreement if such delay is due to
any circumstance beyond our reasonable control.
12.7 Governing Law. This Agreement shall be governed by and construed
according to the law of the State of NSW, Australia. The Parties
irrevocably submits to the exclusive jurisdiction of the Courts of
that state.
12.8 Notices. Any notice given under this Agreement must be in writing
addressed to the relevant address last notified by the recipient to
the Parties. Any notice may be sent by standard post or email, and
will be deemed to have been served on the expiry of 48 hours in the
case of post, or at the time of transmission in the case of
transmission by email.
12.9 Privacy. The Parties agree to comply with the legal requirements
of the Australian Privacy Principles as set out in the Privacy Act
1988 (Cth) and any other applicable legislation or privacy guidelines
(Privacy Laws). You consent to our use of your personal information in
accordance with our Privacy Policy and agree that you are responsible
for obtaining the consent of any third parties, whose personal
information you provide to us, to use their personal information in
accordance with our Privacy Policy.
12.10 Publicity. You agree that we may advertise or publicize the
broad nature of our provision of the Services to you, including on our
website or in our promotional material.
12.11 Referrals. On request by you, we may provide you with contact
details of third-party specialists. This is not a recommendation by us
for you to seek their advice or to use their services. We make no
representation or warranty about the third-party advice or provision
of services, and we disclaim all responsibility and Liability for the
third-party advice or provision of services, or failure to advise or
provide services.
12.12 Severability. If any term of this Agreement is held invalid or
unenforceable for any reason, the remainder of the term and this
Agreement will continue in full force and effect.
12.13 Survival. The provisions of this Agreement which are capable of
having effect after the expiration of this Agreement shall remain in
full force and effect following the expiration of this Agreement.
12.14 Updates. We may update these General Terms from time to time.
The updated version will be indicated by an updated "Revised" date and
the updated version will be effective as soon as it is accessible. If
we make material changes to these General Terms, we may notify you
either by prominently posting a notice of such changes or by directly
sending you a notification.
12.15 Waiver, Modification. Neither Party’s waiver of the breach of
any provision constitutes a waiver of that provision in any other
instance. This Agreement may not be modified nor any rights under it
waived, in whole or in part, except in writing signed by the Parties.
13. Definitions
Business Day means a day on which banks are open for general banking
business in New South Wales, excluding Saturdays, Sundays and public
holidays.
Confidential Information means information in any format (including
oral information), which is not publicly known, that by its nature is
confidential or in respect of which the party knows or ought to know
is confidential; or information that is designated by the relevant
party as confidential.
Consequential Loss includes any consequential loss, indirect loss,
real or anticipated loss of profit, loss of benefit, loss of revenue,
loss of business, loss of goodwill, loss of opportunity, loss of
savings, loss of reputation, loss of use and/or loss or corruption of
data, whether under statute, contract, equity, tort (including
negligence), indemnity or otherwise.
Custom Collaboration Form means a custom order including any
variations or additional terms and conditions as agreed between the
parties.
Customer Provisions means the provisions of any of the Customer’s
terms of trade provided by the Customer or on its behalf, whether or
not those provisions are attached to or referred to in the Custom
Collaboration Form or any other instrument.
Data means all of the information, documents and other data, including
any personal information, provided or uploaded by you or your
Personnel to us or our Systems or otherwise accessed by us in
providing the Services.
Intellectual Property means any domain names, know-how, inventions,
processes, trade secrets or Confidential Information; or circuit
layouts, software, computer programs, databases or source codes,
including any application, or right to apply, for registration of, and
any improvements, enhancements or modifications of, the foregoing.
Liability means any expense, cost, liability, loss, damage, claim,
notice, entitlement, investigation, demand, proceeding or judgment
(whether under statute, contract, equity, tort (including negligence),
indemnity or otherwise), howsoever arising, whether direct or indirect
and/or whether present, unascertained, future or contingent and
whether involving a third party or a Party to this Agreement or
otherwise.
Privacy Policy means our privacy policy, which is available on our
website and updated from time to time.
Proposal means a quotation, work order or statement of work document
setting out the services and the associated fees to be delivered to
you.
Relevant Legislation means the Competition & Consumer Act 2010 (Cth)
and any other relevant legislation that implies warranties, conditions
or guarantees in respect of the Deliverables or the Agreement and that
may not be excluded or only excluded to a limited extent.
Schedules refers to our Schedules to these General Terms.
Services refers to technical support, education, consulting, or other
services which you have ordered.
Software refers to the software owned by Baseline that you have
ordered, as described in the Proposal or Custom Collaboration Form.
System means all hardware, software, networks, and other IT systems
used by a Party from time to time, including a network
Last Updated July 2023