PARTIES

The DynamicsGroup Pty Ltd
ACN 607 247 432 of
Level 4, 155 Queen Street Brisbane in the State of Queensland (we, us, our or Dynamics Group)
AND
The party detailed in Dynamics Group’s services agreements, Proposal or invoices from time to time (Client, you or your)

RECITALS

A. Dynamics Group provides consultancy services and/or software with respect to Customer Relationship Management software.
B. Dynamics Group may provide you with the Goods and Services from time to time.
C. Dynamics Group agrees to provide the Goods and Services to you, and you agree to purchase the Goods and Services from us, in accordance with the Agreement.

APPOINTMENT

You agree that you have read and understood these Terms and Conditions and you agree to engage Dynamics Group to carry out the Goods and Services as defined in any services agreement, order form or Proposal document provided by us and in accordance with the terms of these Terms and Conditions.

Dynamics Group Terms And Conditions

1. DEFINITIONS 1.1. Agreement means these Terms and Conditions and any and all terms contained in any services agreements, Proposal or invoices provided by us from time to time. 

1.2. Authorised Representative means you or your staff member nominated in a Proposal, empowered to act on your behalf. 

1.3. Business Day means a day on which authorised deposit-taking institutions (as that term is defined in the Banking Act 1959 (Cth)) are open for business in Brisbane but excludes, for the avoidance of doubt, Saturdays, Sundays and public holidays. 

1.4. Charges mean the fees payable by you to us under the Agreement. 

1.5. Confidential Information means the confidential information of a Party, which relates to the subject matter of the Agreement and includes:

1.5.1. confidential information relating to the Goods and Services; 

1.5.2. confidential information relating to you and your clientele; 

1.5.3. information relating to our personnel, business strategies, policies, procedures, documentation, methods and clientele; and 

1.5.4. information relating to the terms of the Agreement. 

1.6. Goods and Services means any goods and/or services (as the case may be) agreed to be supplied by Dynamics Group as set out in our services agreements, Proposal or invoices from time to time. 

In these Terms and Conditions, unless the contrary intention appears: 

Insolvency Event means:

1.7.1. a provisional liquidator, liquidator, administrator, receiver, receiver and manager being appointed to you or to your property; 

1.7.2. you becoming an externally administered body corporate (as defined in section 9 of the Corporations Act 2001 (Cth)); 

1.7.3. any event mentioned in section 461 of the Corporations Act 2001 (Cth) happening to you; 

1.7.4. your share capital being reduced; 

1.7.5. an application under section 601AA of the Corporations Act 2001 (Cth) being made in relation to you; 

1.7.6. the giving of a notice under section 601AB(3) of the Corporations Act 2001 (Cth) in relation to your proposed deregistration; and 

1.7.7. you giving financial assistance in contravention of Part 2J.2 of the Corporations Act 2001 (Cth); and 

1.7.8. anything analogous or having a substantially similar effect to any of the events specified above happening under the law of any applicable jurisdiction; 

1.8. Intellectual Property Rights includes all copyright and neighbouring rights, all rights in relation to inventions (including patent rights), plant varieties, registered and unregistered trademarks (including service marks), registered designs, Confidential Information (including trade secrets and know how) and circuit layouts, and all other rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields. 

1.9. Party means either Dynamics Group or you, the Client. 


2. SCOPE OF THESE TERMS AND CONDITIONS 2.1. These Terms and Conditions apply to any agreement entered into between Dynamics Group and you for the provision of the Goods and Services. 


3. ENGAGEMENT OF DYNAMICS GROUP

3.1. We will provide the Goods and Services to you upon the terms and conditions set out in the Agreement. 

3.2. We will use our reasonable efforts to meet any specific timeframes agreed between the parties. However, you acknowledge that these timeframes are estimated dates only and that we are not bound to meet those estimated dates. 

3.3. Subject to otherwise complying with our obligations under the Agreement, we will exercise our independent discretion as to the most appropriate and effective manner of providing the Goods and Services and of satisfying your expectations of those Goods and Services. 


4. CLIENT OBLIGATIONS

4.1. You agree to nominate a staff member as your Authorised Representative and that person will be responsible for providing us with instructions, information and materials on your behalf. 

4.2. Your Authorised Representative will approve and sign any Proposal document on your behalf. 

4.3. You must, at all times, comply with our payment terms in respect of your payment of the Charges. 


5. ACCEPTANCE

You may accept the Agreement by:

5.1. Contacting us and advising us your acceptance; 

5.2. Requesting us to proceed or provide the Goods and Services after receiving a services agreement or Proposal; or 

5.3. Accepting the delivery or provision (as the case may be) of the Goods and Services; 

5.4. Providing us with payment in accordance with the Agreement. 


6. SERVICES

6.1. Dynamics Group may, at its absolute sole discretion, provide any services agreed to be provided by it pursuant to the Agreement on a:

6.1.1. time and material basis; 

6.1.2. fixed price project basis; or 

6.1.3. pre-paid hours basis. 

6.2. If we provide our services on a:

6.2.1. Time and material basis:

6.2.1.1. you will be charged on a time and attendance basis in accordance with the rate detailed in the Agreement; 

6.2.1.2. any expenses or disbursements incurred by us in providing the services will be billed to you; 

6.2.1.3. you may request at any time for us to discontinue work on a time and material basis, however all work performed by us prior to such a request being made will be charged to you in accordance with the rate detailed in the Agreement; 

6.2.2. Fixed price project basis:

6.2.2.1. We will provide you with a fixed price for the provision of the services required to be provided pursuant to the Agreement; 

6.2.2.2. Unless otherwise stated in the Agreement, the fixed fee does not include any disbursements or expenses incurred by us in providing the services contained in the Agreement to you; 

6.2.2.3. Any matter that is not expressly included in the Agreement is not included in the fixed fee; and 

6.2.3. Pre-paid hours basis:

6.2.3.1. You must provide us with the sum agreed upon in the Agreement at least seven (7) days prior to the agreed commencement date for the provision of the Goods and Services; 

6.2.3.2. We will provide the Goods and Services in accordance with the terms of the Agreement until such a time as the agreed sum has been exhausted; 

6.2.3.3. Expenses incurred throughout the course of providing the Goods and Services will be applied to the agreed sum; 

6.2.3.4. We will notify you once the agreed sum has been exhausted; 

6.2.3.5. The agreed sum may be increased or decreased at any time by agreement between the parties in writing; 

6.2.3.6. We are under no obligation to accept an increase or decrease in the agreed sum after the Agreement is accepted or deemed to be accepted. 


7. CHARGES

7.1. You agree to pay all Charges under the Agreement to Dynamics Group within 7 days of receipt of our invoice or, if our invoice states another timeframe, the timeframe provided in our invoice. 

7.2. Subject to clause 8.1.1, you agree to make payment of the Charges in accordance with any payment method stated on an invoice issued by Dynamics Group in respect of the Goods and Services. 

7.3. We may invoice you and you agree to pay all additional charges as a consequence of any work to be carried out by us, which is in addition to the work expressly contained in the Agreement. 

7.4. We may require that you pay to us an up-front deposit for work to be carried out under the Agreement. 

7.5. If payment is not effected within 7 days of the due date, Dynamics Group may, at its absolute discretion, charge interest on the overdue amount at an interest rate equal to 10%. Such charges will be calculated on a monthly basis beginning on the day following the due date of payment. Dynamics 

Group may, at its absolute discretion, charge other reasonable costs in relation to recovering overdue payments. 

7.6. If you dispute the whole or any portion of the amount claimed in an invoice submitted by us, you agree to pay the portion of the amount stated in the invoice which is not in dispute and will notify us in writing (within seven (7) days of receipt of the invoice) of the reasons for disputing the remainder of the invoice. 

7.7. Unless an invoice is disputed in accordance with clause 7.6 above Dynamics Group reserves the right to suspend work on the Services until all invoices are paid in full. 

7.8. Except where specially advised in writing, the Charges are exclusive of: 7.8.1. GST or any other taxes and duties; and 

7.8.2. Any costs relating to the transport, insurance, packaging or handling of any goods required to be provided pursuant to the Agreement. 

7.9. Any payment due to be paid by you in accordance with the terms of the Agreement must be made without deduction, set-off, counter-claim or cross-demand. 


8. CHARGES – HARDWARE AND SOFTWARE

8.1. You agree to make payment of the Charges for:

8.1.1. Software strictly by EziDebit only; and 

8.1.2. Hardware in accordance with any payment method stated on our invoice issued in relation to the Hardware. 

8.2. With respect to the provision of Software:

8.2.1. You acknowledge that we will not provide you with access to any Software unless payments required pursuant to the Agreement are agreed to be made by EziDebit; 

8.2.2. You must complete EziDebit’s Direct Debit Authority within seven (7) days of being provided with the our EziDebit details; 

8.2.3. We will only arrange for funds to be debited from your nominated account throughout the course of the Agreement as often as is reasonably required in order for us to comply with our contractual obligations to third party suppliers; 

8.2.4. You must ensure that you maintain sufficient funds in your nominated bank account to satisfy any Charges that become due and payable by you pursuant to the Agreement from time to time; 

8.2.5. You agree not to suspend or terminate your direct debit request authority until such a time as all Charges payable by you pursuant to the Agreement have been satisfied; 

8.2.6. In the event that payment for any Software is overdue, we may, without notice to you, cancel or suspend the provision of the Software for which payment is overdue at your cost (if any cancellation or suspension fees apply); 

8.2.7. In the event that you wish to terminate a subscription for Software, you must:

8.2.7.1. provide us with a period of notice equal to or greater than the period of notice that we must provide to our Software provider to terminate your subscription for Software; and 

8.2.7.2. pay all monies payable by us with respect to the termination of your subscription with our Software provider. 

8.3. Payment for any Hardware purchased by the Client under the Agreement must be received by Dynamics Group in full and in cleared funds, prior to Dynamics Group delivering the purchased Hardware to the Client. 

8.4. All right, title and interest in and to the Hardware will belong to Dynamics Group, until such time that payment has been received by Dynamics Group from the Client. 

8.5. If you dispute the whole or any portion of the amount claimed in an invoice submitted by us in relation to the Hardware and/or Software, you agree to pay the portion of the amount stated in the invoice, which is not in dispute and will notify us in writing (within seven (7) days of receipt of the invoice) of the reasons for disputing the remainder of the invoice. If it is resolved that some or all of the amount in dispute should have been paid at the time it was first invoiced, then you agree to pay the amount finally resolved together with interest on that amount in accordance with the terms of payment set out in the Agreement. 


9. CHARGES – DISBURSEMENTS AND TRAVEL TIME

9.1. Disbursements and expenses will be charged to the Customer as follows:

9.1.1. Accommodation, travel and other expenses incurred in performing the Services and supplying the Deliverables, provided that such expenses are identified and agreed in the relevant Associated Document or the Customer’s pre-approval of the expense has otherwise been obtained (not to be unreasonably withheld). 

9.1.2. All costs incurred in travelling to and from Customer’s premises or travel otherwise required in the performance of the Services (including for example travel to and from third party’s premises), including:

9.1.2.1. Mileage, at the current recommended rate, will be charged for the return trip from the Dynamics Group (the Dynamics Group office that is nearest to the destination) to the destination 

9.1.2.2. Travel time at 50% of standard rates for work performed over 50kms from nearest Dynamics Group office to the Customer’s site. 

Disbursements and expenses will be invoiced on a weekly basis for payment by the Customer as per the terms of the invoice. 


10. CANCELLATIONS

10.1. All purchases of the Goods and Services, confirmed by your payment to Dynamics Group, are final and cannot be cancelled by you. 

10.2. We may cancel your request for the Goods and Services at any time if, for any reason, we are unable to provide you with the Goods and Services. 

10.3. You will not be entitled to claim from Dynamics Group any additional amounts or seek compensation for any loss, expense or damage (either direct or consequential) or for any loss of time or inconvenience, which may result from our cancellation of the Goods and Services. 


11. REFUNDS

11.1. All Charges are non-refundable, unless you are entitled to a refund under the Australian Consumer Law. 

11.2. You will not be entitled to a refund if you simply change your mind about acquiring the Goods and Services from us once the Agreement has been entered into. 


12. WARRANTIES

12.1. To the extent permitted by any relevant legislation, we do not make any warranty in relation to the quality or suitability with respect to the Goods and Services. 

12.2. Dynamics Group will use its best efforts, techniques and accepted standards in performing or providing the Goods and Services, however, we do not make any representation, guarantee or warranty of any kind as to any results that may be achieved as a consequence of us providing you with the Goods and Services. 

12.3. You warrant and represent to us that you have:

12.3.1. the power to enter into and perform the Agreement; 

12.3.2. taken all necessary action to make the Agreement fully valid, binding and enforceable against you. 

12. LIABILITY OF DYNAMICS GROUP

12.1. The parties expressly exclude all terms, representations and warranties that may be implied by law in connection with the Agreement or the provision of Goods and Services except to the extent those terms, representations or warranties may not be lawfully excluded. 

12.2. If any legislation implies in the Agreement any term or warranty and also prohibits provisions in a contract excluding or modifying the application of or exercise of, or liability under, that term or warranty, is deemed to be included in the Agreement. 

12.3. Dynamics Group expressly excludes liability for any:

12.3.1. indirect, special, incidental, or consequential loss or damage suffered by you which may arise in respect of the Agreement, or the provision of Goods and Services, their use, or in respect of other equipment or property; 

12.3.2. loss, damage or expense that you may incur or suffer (as the case may be) as a consequence of any act or omission of any third party service provider, including, without limitation, the disconnection or outage of any service being provided by the relevant third party service provider; and 

12.3.3. loss of profit, business, revenue, goodwill or anticipated savings. 

12.4. If any legislation or law implies into the Agreement any term or warranty and also prohibits provisions in a contract excluding the application of or exercise of that term or warranty then, to the maximum extent permitted by law, the liability of Dynamics Group for a breach of such a term or warranty will be limited, at option, to any one or more of the following:

12.4.1. the supplying of the Goods and Services again; or 

12.4.2. the payment of the cost of having the Goods and Services supplied again. 

12.5. To the maximum extent permitted by law, if for any reason Dynamics Group is directly or indirectly liable to you in respect of any Goods and Services, the maximum aggregate liability of Dynamics Group in respect of all claims made by you will be the Charges in respect of those Goods and Services. 


13. INTELLECTUAL PROPERTY

13.1. Ownership of Intellectual Property 

13.2. Assignment of Intellectual Property 

13.3. Licence to use Intellectual Property 

13.4. Client’s breach of Dynamics Group’s Intellectual Property Rights 

Dynamics Group exclusively owns all of the Intellectual Property Rights created in the course of it providing the Goods and Services or which may arise from the provision of Goods and Services that relate to any services agreement or Proposal document. 

You agree to assign to us any and all rights, title and interest in any Intellectual Property developed (whether in the past or future) as a direct or indirect consequence of our provision of the Goods and Services. You agree to give us all necessary assistance required to perfect the assignment of such rights. 

Upon your payment of the Charges for the Goods and Services in full, Dynamics Group agrees to grant you a royalty-free and perpetual licence to use the Intellectual Property created pursuant to the Agreement. 

If you breach any of Dynamics Group’s Intellectual Property Rights, then Dynamics Group may pursue all of its rights at law for a breach of its Intellectual Property Rights under the Agreement. 


14. RESTRAINTS

14.1. Twelve (12) months; 

14.2. Six (6) months; or 

During course of the Agreement and for a period of:  

14.3. Three (3) months, 

following the termination of the Agreement for any reason, you must not, on your own account or for any other person, entice or induce away from us any employee, contractor, officer or agent of ours who is employed or engaged by us. 


15. INDEMNITY

15.1. Any breach of the Agreement by you; 

15.2. Any improper use by you of any goods provided by us from time to time; 

15.3. Any infringement or purported infringement by you of our Intellectual Property Rights; 

15.4. Any loss or damage to any property or injury to or death of any person caused by any act or omission of you, your agents, employees, contractors or officers. 

You agree to indemnify us against any expense, loss, damage or cost (on a solicitor and own client basis) that we may sustain or incur as a direct or indirect result of any of the following: 


16. TERMINATION

16.1. Either party may terminate the Agreement by providing thirty (30) days’ written notice to the other party. 

16.2. If the Services provided pursuant to the Agreement includes provision of the Software and the period of notice required to be provided pursuant to clause 8.2.7 is greater than thirty (30) days, either party may terminate the Agreement by providing:

16.2.1. With respect to that portion of the Agreement that does not relate to the provision of Software, thirty (30) days’ written notice; and 

16.2.2. Otherwise, the period of written notice required to be provided pursuant to clause 8.2.7. 

16.3. In the event that the Agreement is terminated by either party pursuant to clause 16.1, you agree that we may continue providing, and charge you for, the Goods and Services in accordance with the Agreement until the date that the Agreement is terminated. 

16.4. Without limiting the generality of any other clause in the Agreement, we may terminate the Agreement immediately by notice in writing if:

16.4.1. you fail to pay the Charges within 7 days of their due date; 

16.4.2. you are subject to an Insolvency Event occurring; 

16.4.3. you commit a breach of any other provision of the Agreement and do not remedy the breach within a period of seven (7) days after receiving notice from us specifying the nature of the default; 

16.4.4. an application or petition is present or any order made or any effective resolution passed for your winding up; 

16.4.5. any judgment is obtained against you and is outstanding for more than seven (7) days; 

16.4.6. you cease to trade or threaten to cease trading; 

16.4.7. any term or condition of the Agreement is or becomes void, voidable or otherwise unenforceable; or 

16.4.8. a representation, warranty or statement by or on your behalf in the Agreement is not true or is incorrect in a material respect or is misleading in a material respect when made or repeated. 


17. DISPUTE RESOLUTION

17.1. Unless otherwise specifically provided in the Agreement, a party to the Agreement must not commence court proceedings, save for proceedings seeking interlocutory relief, in respect of a dispute arising out of the Agreement unless it has complied with the provisions of this clause. 

17.2. A party must give the other a notice (dispute notice) setting out: 

17.2.1. what the party considers is in dispute; and 

17.2.2. what that party requires to be done to resolve the dispute and the grounds it has for those requirements. 

17.3. If the dispute is not resolved within ten (10) Business Days of delivery of the dispute notice, the parties must, within two (2) Business Days, appoint a mediator approved by both parties or a mediator appointed by the President of the Queensland Law Society. The parties must ensure that the mediation is held and concluded within 15 days of the appointment of the mediator. 

17.4. Evidence of anything said or done in the course of attempting to settle a dispute is not admissible in any subsequent proceedings. 

17.5. During the dispute resolution process the parties must continue to perform their obligations under this document. 

17.6. If the dispute is not resolved by mediation within 30 days of the delivery of the dispute notice then either party may terminate the mediation. 

17.7. Costs associated with the appointment of a mediator shall be borne equally between the parties to the dispute. 

17.8. Subject to clause 17.7, each party must pay its own legal costs and disbursements connected with the dispute. 


18. GENERAL PROVISIONS

18.1. Alterations 

18.2. Invalid or unenforceable provisions

18.2.1. it is read down or severed in that jurisdiction to the extent of the invalidity or unenforceability; and 

18.2.2. it does not affect the validity or enforceability of:

18.2.2.1. that provision in another jurisdiction; or 

18.2.2.2. the remaining provisions. 

18.3. Survival 

Any indemnity or any obligation of confidence under the Agreement is independent and survives termination of the Agreement. Any other term by its nature intended to survive termination of the Agreement survives termination of the

18.4. No merger 

The rights and obligations of the parties under the Agreement do not merge on completion of any transaction contemplated by the Agreement. 

18.5. Entire Agreement 

The Agreement constitutes the entire agreement between the parties in connection with its subject matter and supersedes all previous agreements or understandings between the parties in connection with its subject matter. 

18.6. Independent Legal Advice 

Each party acknowledges that, prior to making the Agreement, it had consulted or had a reasonably opportunity to consult, independent legal and/or financial advisers. 

18.7. Further action 

Each party must do, at its own expense, everything reasonably necessary (including executing documents) to give full effect to the Agreement and any transaction contemplated by it. 

18.8. Waiver

18.8.1. The failure of a party at any time to require performance of any obligation under the Agreement is not a waiver of that party’s right: 

(a) to claim damages for breach of that obligation; and 

(b) at any other time to require performance of that or any other obligation under the Agreement, unless written notice to that effect is given to the other party.

18.8.2. A waiver of any provision of or right under the Agreement: 

(a) must be in writing signed by the party entitled to the benefit of that provision or right; and 

(b) is effective only to the extent set out in any written waiver. 


19. ONGOING COMMUNICATIONS 

By entering in to the Agreement, you agree to receive electronic commercial messages from Dynamics Group, or its related entities, until such time that you communicate your desire to opt out of such communications. You may do this at any time by contacting us as follows: 

Contact person: Ross Guthrie (Dynamics Group Director) 

Email: ross.guthrie@dynamicsgroup.com.au 

Phone: 0417 357 988 

Post: Level 4, 155 Queen Street Brisbane QLD 4000 


20. JURISDICTION AND APPLICABLE LAW 

The Agreement is to be governed by and construed in accordance with the laws of the State of Queensland, Australia, without regard to conflict of law provisions. You irrevocably and unconditionally submit to the exclusive jurisdiction of the Courts of Queensland and Courts of Appeal from them for determining any dispute concerning the Agreement. This clause will survive termination of the Agreement. 


21. CONTACTING US 

If you have any questions relating to the Agreement, please contact us via any method set out in Clause 19.