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    Terms & Conditions

    1. Definitions and interpretation

    Execution Date means the date on which the Client enters into the Agreement with Fractal by signing the Accepted Proposal.

    1.1 Definitions

    The following definitions apply to the Agreement:

    Accepted Proposal means a proposal fully particularising the Services, in its final form which is signed by the Client.

    Agreement means the agreement entered into by the Client and Fractal for the supply of Services in an Accepted Proposal under and in accordance with these Terms and Conditions.

    Approved Purpose means the purpose of promoting, advertising and marketing the business of the Client, as disclosed to Fractal at the time of entering into this Agreement.

    Australian Consumer Law means Schedule 2 of the Competition and Consumer Act 2010 (Cth).

    Background Intellectual Property means Intellectual Property developed, owned by or licensed to a party as at the Commencement Date, or acquired or developed by a party during the Term, other than for the sole purpose of this Agreement, which that party has the right to license to third parties and which are necessary or desirable for the performance of the Services.

    Claim means any allegation, debt, cause of action, liability, claim, proceeding, suit or demand of any nature whether present or future, fixed or unascertained, actual or contingent, at law, in equity, under statute or otherwise.

    Client means the party acquiring the Services from Fractal, as identified in the Accepted Proposal and, as the context requires, its Representatives.

    Client System means any computer or other technology system owned or operated by the Client which is relevant to the Services.

    Commencement Date means the date specified in the Accepted Proposal for the commencement of the Services.

    Completion Date means the date specified in the Accepted Proposal.

    Confidential Information of a party means:

    • this Agreement and the information within this Agreement;
    • all information, know-how, ideas, concepts, technology, data, source or object code, designs, functions, features and performance notes, technical data and marketing information such as customer lists, financial information and business plans which is disclosed, communicated or delivered to, learnt by, or which otherwise comes to the knowledge of or into the possession of the other party under or in connection with this Agreement,

    but does not include:

    • information which is or becomes generally available in the public domain (other than through any breach of confidence);
    • information received by the other party other than as a result of a breach of any duty of confidence owed to the first party; or
    • information which has been independently developed by the other party.

    Consequential Loss means the following, however arising and even if it is reasonably contemplated by the parties at the Execution Date as a likely result of breach of the Agreement:

    • incidental, special, remote or unforeseeable loss or damage;
    • loss of revenue, profit, income, bargain, opportunity, use, production, business, contract, goodwill, or anticipated savings, loss caused by business interruption, or the cost of obtaining new financing or maintaining existing financing, but excluding loss of any amounts that would, but for the act or omission of a party, have otherwise been payable under this Agreement;
    • costs or expenses incurred to prevent or reduce loss or damage which otherwise may be incurred or suffered by a third party; or
    • loss or damage of the nature set out above in clauses (a) to (c) (inclusive) that is incurred or suffered by or to a third party.

    Special Conditions means those terms (if any) listed in the Accepted Proposal, which may include assumptions or prerequisites for the Client System.

    Specifications means the details of the Services, as set out in the Accepted Proposal.

    Taxes means taxes, levies, imposts, charges and duties ancillary to the Services and the provision of the Material.

    7. Fees, Taxes and GST

    7.1 Fees

    In consideration of Fractal providing the Services, the Client will pay Fractal the Fees using the Payment Method and in accordance with the Payment Timetable.

    7.2 Failure to pay

    If the Client does not make payment in accordance with the Payment Timetable, Fractal is entitled to do any or all of the following:

    • charge interest on the outstanding amount at a rate equivalent to the reference rate charged by Fractal's principal bank, accruing daily;
    • require the Client to pay in advance for any Services which have not yet been performed; and
    • not perform any further Services.

    7.3 Responsibility for Taxes

    The Client is responsible for all Taxes arising from or relating to this Agreement and must pay:

    • taxes which are imposed on Fractal, directly to the relevant Government Agency; and
    • taxes which are imposed on the Client, directly to the relevant Government Agency on behalf of Fractal, on or before the latest date that the Tax is due for payment without incurring any penalty or additional tax for late payment.

    7.4 GST

    (a) The Client acknowledges that the Fees are exclusive of any GST.

    (b) If GST is payable in respect of a supply made under or in relation to this Agreement, the recipient must pay to the supplier an amount equal to the GST payable on the supply (GST Amount). The GST Amount is payable by the recipient in addition to and at the same time as any consideration for the supply, provided the supplier has given the recipient an Invoice.

    8. Confidential Information

    8.1 Protection of Confidential Information

    Each party must keep confidential any Confidential Information disclosed to it or made available to it by the other party.

    8.2 Removal of Confidential Information

    Within 10 Business Days of the Expiry Date or at the request of the party to whom the Confidential Information belongs, each party must deliver, erase or destroy all electronic and physical documents in its possession or control that contain Confidential Information.

    8.3 Return exceptions

    If a party must retain the other party's Confidential Information for the purpose of:

    • complying with any Law;
    • litigation;
    • internal quality assurance and record-keeping; or
    • performing its obligations or exercising its rights under this Agreement,

    it may retain and use it solely for this purpose but must deal with the Confidential Information in accordance with clause 8.2 promptly after it is no longer required for this purpose.

    9. Intellectual Property

    (a) Background Intellectual Property will remain the sole property of the owner. Neither party acquires right, title or interest in or to the Background Intellectual Property of the other party by virtue of this Agreement or the disclosure or use of the Background Intellectual Property in the course of the performance of the Services, other than as expressly set out in this Agreement.

    (b) Fractal owns all Intellectual Property rights in and to the Material and Fractal's Background Intellectual Property (together, Fractal IP).

    Fractal grants the Client a royalty free, revocable, worldwide, personal, non-exclusive licence, to use, copy, duplicate or print the Fractal IP strictly for the Approved Purpose and without the right to sub-license, transfer, assign, re-sell, share or commercially exploit the Fractal IP.

    10. Warranties

    10.1 Mutual warranties

    Each party represents and warrants to the other party as at the Execution Date and at all times during the Term that:

    • it has full corporate power and authority to enter into, perform and observe its obligations under this Agreement, and that its execution, delivery and performance of this Agreement has been duly and validly authorised by all necessary corporate action; and
    • its obligations under this Agreement are valid, binding and enforceable.

    10.2 Fractal warranties to the Client

    Fractal represents and warrants to the Client as at the date of this Agreement and at all times during the Term that:

    • to the best of its knowledge, it has the right and power to grant to the Client the licences under this Agreement;
    • it, and each Service Personnel, has the level of skill, knowledge, experience and ability which may be reasonably expected of a professional organisation or individual, as applicable, experienced in providing services of the type and complexity of the Services;
    • to the best of its knowledge and to an extent reasonably expected of the type and complexity of the Services, all Services supplied will be in conformity with the Specifications and will be fit for the purpose explicitly communicated by the Client and fit for any purpose for which they are commonly acquired; and
    • it will do all things reasonably necessary to ensure the Services are completed and the Materials are delivered by the Completion Date.

    10.3 No warranties in relation to completion or content

    (a) Fractal provides no warranty that any result or objective can or will be achieved or attained at all by the Completion Date or any other date.

    (b) Fractal provides no warranty as to the suitability of the content of the Materials for any purpose other than that specified in the Accepted Proposal, which it may interpret, and apply using its experience, skill and judgment, in order to prepare the Materials and determine the content.

    11. Indemnity and Infringement Claim

    11.1 Mutual indemnities

    (a) Subject to the limitation of liability under clause 15.1, each party (Indemnifying Party) indemnifies the other party (Indemnified Party) and their Representatives (together, Indemnified Persons) against all and any Claims (including, but not limited to, reasonable legal costs and defence or settlement costs) directly or indirectly arising out of, or in connection with:

    • any fraudulent or unlawful act or omission of the Indemnifying Party or its Representatives;
    • any damage to or loss or destruction of real or personal property caused or contributed to by any act or omission of the Indemnifying Party or its Representatives;
    • any third-party Claim; and
    • any Infringement Claim, except to the extent the liability, loss, damage, cost or reasonable expense is caused or contributed to by the act or omission of the Indemnified Persons or its Representatives.

    (b) It is not necessary for a party to incur expense or make a payment before enforcing a right of indemnity conferred by this clause 11.1.

    11.2 Conduct of Infringement Claims

    If an Infringement Claim is made:

    • the Indemnified Party must promptly notify the Indemnifying Party of the Infringement Claim and provide assistance at the Indemnifying Party's expenses for the purposes of managing the Infringement Claim, as reasonably requested by the Indemnifying Party; and
    • the Indemnifying Party is responsible for and will have the right solely to control the defence and settlement of the Infringement Claim.

    12. Force Majeure

    (a) If a Force Majeure Event prevents Fractal from providing the Services, Fractal will provide the Client a written notice of the Force Majeure Event and the anticipated impact on Fractal's performance of the Services.

    (b) If a Force Majeure Event continues for more than 10 calendar days, either party may terminate the Agreement by written notice to the other without liability for damages of any kind, including for Consequential Loss.

    13. Dispute Resolution

    (a) The parties must use reasonable endeavours to resolve any dispute through negotiation between them.

    (b) If the dispute cannot be negotiated between the parties, either party may refer the dispute for arbitration through the Australian Commercial Disputes Centre (ACDC).

    (c) The arbitration will be conducted in Queensland in accordance with the ACDC Rules for Domestic Arbitration operating at the time the dispute is referred to the ACDC (the Rules).

    (d) The terms of the Rules are deemed incorporated into this Agreement.

    14. Termination

    14.1 Termination upon notice

    Fractal may terminate this Agreement in whole or in part at will by giving at least 30 days' written notice to the Client.

    14.2 Termination for cause

    Either party may terminate this Agreement by notice with immediate effect if the other party:

    • commits a material breach of the Agreement that is not capable of remedy;
    • commits a material breach of the Agreement capable of remedy, and does not remedy that breach within 10 Business Days after receipt of notice of the breach; or
    • suffers an Insolvency Event.

    14.3 Consequences of termination by the Client for Fractal's default

    (a) If the Client terminates this Agreement under clause 14.2 then, without limiting any other rights, the Client:

    • will not be required to make any payment in respect of Services not yet supplied on the effective date of termination; and
    • may recover from Fractal all money paid for any Services, or part of a Service, not yet supplied.

    After exercising its rights under clause 14.2, the Client must pay the net amount outstanding to Fractal.

    14.4 Consequences of termination by Fractal for the Client's default

    Fractal may immediately terminate this Agreement by notice to the Client, if:

    • the Client fails to pay one or more undisputed amounts due and payable; and
    • Fractal issues a notice to the Client that it intends to terminate this Agreement pursuant to this clause 14.4 if payment of the outstanding amount, plus interest, is not received within 14 days of the Client receiving the notice; and
    • the Client fails to make payment of the outstanding amount plus interest within 14 days of receiving a notice in accordance with the clause 14.4.

    14.5 Preservation of rights

    Expiry or termination of this Agreement for any reason does not affect any rights of either party against the other which arose prior to the time at which such termination or expiry occurred, or which otherwise relate to or which may arise at any future time for any breach or non-observance of obligations under this Agreement occurring prior to the termination or expiry.

    16. General

    16.2 Entire agreement

    This Agreement represents the entire agreement between the parties and supersedes all prior discussions, negotiations, understandings and agreements in relation to the subject matter of this Agreement.

    16.3 Assignment

    (a) The Client must not assign or otherwise deal with all or any part of its rights or obligations under this Agreement without Fractal's prior written consent (which may not be unreasonably withheld but which may be given subject to reasonable conditions).

    (b) Fractal may assign or otherwise deal with any of its rights or obligations under this Agreement without the Client's prior consent.

    16.4 Waiver and variation

    A provision of this Agreement, or right, power or remedy created under it, may not be varied or waived except in writing signed by the party or parties to be bound.

    16.5 Counterparts

    This Agreement may be signed in any number of counterparts. All signed counterparts taken together constitute one agreement.

    16.6 Rights, powers and remedies cumulative

    The rights, powers and remedies given in this Agreement are in addition to other rights, powers and remedies given by law independently of this Agreement.

    16.7 Severability

    If any provision is unenforceable or invalid, it will be ineffective to the extent it is unenforceable or invalid, without affecting the validity or enforceability of the remaining provisions of this Agreement.

    16.8 Survival

    Termination or expiration in whole or in part of this Agreement does not affect those provisions and those obligations of a party which by their very nature survive termination, including clause 7.3, clause 8, clause 9, clause 10, clause 11, clause 13, clause 14.3, clause 15, clause 16.8 and clause 16.9.

    16.9 Governing law and jurisdiction

    (a) This Agreement is governed by the laws in force in Queensland, Australia.

    (b) The parties submit to the exclusive jurisdiction of the courts of Queensland, Australia.