Terms and Conditions.

1. Recitals

1.1. This Agreement is between Salt Labs and the Customer.

1.2. This Agreement supersedes and replaces any and all previous agreements between the parties

1.3. This Agreement is accepted by the Customer by doing either one or more of the following:

a) Signing these terms and conditions; or
b) Signing the proposal, Schedule or quotation issued by Salt Labs in which these terms and conditions were attached or referred to; or
c) Accepting a Quote issued by Salt Labs, be that electronically via Salt Labs’ quotation system or in writing.
d) Placing an order or request for the Subscriptions or Services specified in a quote

2. Definitions and Interpretation 

2.1. In this agreement, except to the extent that the context otherwise requires:

a) ‘Agreement’ means these terms and conditions, a schedule, quotation or proposal in which these terms and conditions are referred or to which they are attached, and any other annexures referred to in the preceding documents.
b) ‘Customer’ means person or entity named as the Customer in the attached or referenced schedule, proposal or quotation.
c) ‘Hardware’ means physical goods, that may include pre-loaded software, supplied by Salt Labs to the Customer from time to time.
d) ‘Intellectual Property Rights’ means copyright, trademark, design, patent, and any other rights whether or not they are registered or registrable, relevant to, among other things, the textual, graphical, electronic, audio and other information, content, data or material used by Salt Labs in respect to this Agreement.
e) ‘Quote’ means a quotation for Subscriptions or Services issued to the Customer via email, or otherwise.
f) ‘Salt Labs’ means Salt Labs Technology Pty Ltd (ACN 638 995 785).
g) ‘Services’ means professional services supplied by Salt Labs to the Customer from time to time.
h) ‘Subscriptions’ means software licences, support/maintenance licences, or other subscriptions supplied by Salt Labs to the Customer from time to time.
i) A reference to a party is to a party to this Agreement, and a reference to a party to a document includes the party’s officers, employees, executors, administrators, successors and permitted assigns and substitutes.

2.2. A reference to a statute, regulation or by–law includes a reference to any amendment, re-enactment or consolidation of such instrument from time to time.

3. Supply of Subscriptions or Services

Salt Labs agrees to supply Subscriptions and/or Services to the Customer in accordance with this Agreement.

4. Purchase Orders

4.1. All requests for the supply of Subscriptions and/or performance of Services must be made to Salt Labs in writing and delivered by post or email (accounts@saltlabs.com.au). Salt Labs may choose not to accept any order or request for Subscriptions or Services by providing written notice to the Customer.

4.2. Any amendments to purchase orders for Subscriptions or Services must be approved by Salt Labs in writing to be effective. Acceptance of a purchase order does not constitute acceptance of any terms and conditions other than those specified in this Agreement, the purchase order or expressly accepted in writing and signed by or on behalf of Salt Labs. For the avoidance of doubt, even where the Customer attaches or refers to other terms and conditions in purchase orders or other requests for quotations or Subscriptions or Services, received after a purchase order has been approved (additional terms), such additional terms are
expressly excluded from this Agreement and will be of no force or effect against Salt Labs unless it expressly agrees otherwise (by notice in writing, signed by a director of Salt Labs).

4.3. If a date for supply of Subscriptions, or Services is nominated by the Customer, Salt Labs will use all reasonable endeavours to supply by the specified date. Salt Labs will be excused from any failure to supply which was contributed to by causes beyond its reasonable control and the time specified for completion of supply will be extended commensurately.

5. Warranties

5.1. Salt Labs makes available no additional warranty in relation to the Subscriptions, and Services other than those prescribed by law, or in the case of Subscriptions, supplied by third-parties or contractors of Salt Labs. 

5.2. Salt Labs will pass through all warranties provided by the respective third-party in relation to Subscriptions to the Customer.

6. Acceptance

6.1. Unless the Customer provides Salt Labs with written notice on any aspect of delivery and supply which is alleged to be other than in accordance with this Agreement within 7 days of delivery, the Customer is deemed to have accepted the respective Services for that delivery.

7. Intellectual Property

7.1. Unless expressly agreed otherwise in writing by Salt Labs, any pre-existing Intellectual Property Rights owned by Salt Labs before the commencement of this Agreement, will remain vested in Salt Labs.

7.2. Any pre‐existing Intellectual Property Rights owned by the customer before the commencement of this Agreement, will remain vested in the customer.

7.3. Where deemed necessary by Salt Labs, certain of its or its supplier’s Intellectual Property Rights (including Subscriptions and Services) will be licensed to the Customer on terms set out in separate licence agreements provided with the Subscriptions, as specified by documentation supplied by Salt Labs or by the respective supplier from time to time. Where Salt Labs notifies you of the existence or requirement to enter into any third-party licence agreements, the customer must prior to supply of the Subscriptions, or the performance of Services, enter into such licence agreements.

8. Customer Obligations and Warranties 

8.1. The Customer shall make available to Salt Labs at all times during business hours complete, correct and adequate information, and such of its equipment and facilities and its personnel as required to provide such access and information as Salt Labs may reasonably require in order to perform the Services.

8.2. The Customer will accept the consequences of all instructions, specifications or directions given by the Customer or by any of its employees and carried out by Salt Labs in good faith. Unless Salt Labs expressly and in writing agrees otherwise, Salt Labs does not represent or guarantee that the outcome of the Services will meet the Customer’s expectations or objectives.

8.3. The Customer shall indemnify and save Salt Labs harmless from and against any expense, loss, claim, judgment, award or order (including settlement of any claim entered into upon legal advice) suffered by or made against Salt Labs arising from or incidental to compliance by Salt Labs with any instruction, specification or direction of the Customer. 

8.4. The Customer warrants that throughout the term of this Agreement that:

a) there are no legal restrictions preventing compliance with the terms of this Agreement
b) it will cooperate with Salt Labs and provide all information that is reasonably necessary to enable satisfactory performance of the Services.
c) the information provided to Salt Labs is true, correct and complete;
d) no third-party rights will be infringed in receiving the Subscriptions or Services;
e) it has obtained any consents, licences and permissions from other parties necessary for the Services to be provided, at the Customers cost.
f) consent is given for the use of the Customer’s name and Intellectual Property in relation to the Services.

9. Subcontracting

9.1. Salt Labs and the Customer hereby acknowledge and agree that Salt Labs may subcontract certain portions of the work it is performing under this Agreement. Salt Labs will be responsible for the performance of Salt Labs’ subcontractors on Salt Labs’ obligations under this Agreement.

10. Payment Terms; GST

10.1. All Subscriptions and Services are either supplied at prices contained in a corresponding and valid quotation or proposal prepared by Salt Labs or if none, then at Salt Labs’ published prices current at the time of supply in $AUD.

10.2. The Customer must make payment to Salt Labs of the price of each Good or Service supplied by Salt Labs as set out in corresponding tax invoice. Payment must be made within fourteen (14) days from the date of invoice. In the event of a dispute by the Customer with any invoiced fees or charges, the Customer will pay the undisputed portion.

10.3. The Customer will reimburse Salt Labs any expenses reasonably incurred by Salt Labs in the performance of the Services in addition to the price for the supply of the Services.

10.4. The prices for supply of Subscriptions and/or Services under this Agreement are exclusive of GST. If as a result of any party to this Agreement making a supply under or in connection with this Agreement, that party (the “Supplier”) becomes liable to remit an amount of GST: 

a) the amount otherwise payable by the party providing the consideration for that supply (“Recipient”) shall be increased by the amount reasonably determined by the Supplier as the amount of GST for which the Supplier is liable as a result of making that supply (“additional amount”); and
b) the additional amounts shall be payable at the same time and in the same manner as the consideration otherwise payable under this Agreement.

10.5. “GST”, “GST law” and other terms used in Agreement which have definitions in the A New Tax System (Goods and Services Tax) Act 1999 have the meanings provided in those definitions and any other applicable legislation and any ruling whether binding or nonbinding.

10.6. If payment in full is not made by the Customer within fourteen (14) days of the due date for payment, then without prejudice to any other of Salt Labs’ rights under this Agreement or at law: 

a) the Customer shall pay upon demand interest upon such unpaid amounts at the rate of one per cent (1%) over Salt Labs’ bank’s overdraft rate for corporate customers. The Customer acknowledges that such interest is a genuine pre-estimate of Salt Labs’ cost of funding such overdue amounts and is not a penalty;
b) the Customer shall pay the cost of any collection, legal costs and related costs incurred by Salt Labs in respect of the unpaid invoice/s; and
c) Salt Labs will be at liberty to suspend all credit and supply to the Customer and place all work on hold indefinitely.

11. Termination/Amendment/Rescheduling 

11.1. The Customer may reschedule the provision of any Services no later than fourteen (14) days prior to the scheduled date of commencement of such Services, for any period up to thirty (30) days from the scheduled date of commencement or as otherwise agreed in writing by Salt Labs. In the event that the Customer requests rescheduling less than fourteen (14) days prior to the scheduled date of commencement of any Services, or for a period longer than thirty (30) days from the scheduled date of commencement, Salt Labs may require payment, and the Customer will pay on Salt Labs’ invoice, a rescheduling fee of twenty-five per cent (25%) of the estimated or fixed fee for the provision of such Services, which is a genuine pre-estimate of Salt Labs’ cost of redeployment of personnel.

11.2. Either party may terminate any of the Services, or this Agreement as a whole, with or without cause, by thirty (30) days’ prior written notice.

11.3. In the event of termination of this Agreement or any of the Services by the Customer without cause under clause 11.2 or termination or suspension of any of the Services or the whole of this Agreement by Salt Labs for cause under clause 11.4, Salt Labs will as soon as possible discontinue the performance of the Services affected thereby and the Customer will pay Salt Labs:

a) Salt Labs’ charges on a time and materials basis for all of the affected Services performed by it up to the effective date of such termination or suspension; and
b) a termination fee equal to twenty-‐‐five percent (25%) of the estimated or agreed fixed fee for the provision of all remaining such Services not performed (in the case of Services subject to a fixed fee, such percentage shall apply to any balance remaining after deduction of the amount invoiced in respect of such Services under paragraph (a) of this clause), which is a genuine pre‐estimate of Salt Labs’ cost of redeployment of personnel.

11.4. In addition, either party may suspend performance of any of the Services, or terminate this Agreement as a whole, and/or require delivery of documentation remaining upon the other’s premises forthwith at any time after:

a) failure to comply with any obligation of the other party under this Agreement or any other agreement between the parties and the continuance of such breach for a period of twenty-one (21) days after the due date for performance of that obligation.
b) an order is made for the other party or any holding company of the other party (“the relevant company”) to be wound up otherwise than voluntarily for the purpose of amalgamation or reconstruction, the relevant company becomes insolvent or bankrupt, has a receiver of its property or assets or any of them appointed, has an official manager appointed, makes or offers to make any assignment for the benefit of creditors, enters or offers to enter into a deed or scheme or arrangement of composition with creditors, or any proceedings under any bankruptcy or liquidation or insolvency laws are commenced by or against the relevant company. 

11.5. In the event of termination or suspension of performance of any of the Services or the termination of the whole of this Agreement for any reason, Salt Labs shall not be liable to pay any refund or rebate of any fees already paid by the Customer, but such payment will be credited against any liability of the Customer under this clause.

11.6. Salt Labs reserves the right to amend this Agreement, provided such amendments are agreed upon by both parties in writing.

12. Exclusion and Limitation of Liability

12.1. While Salt Labs will take all reasonable measures to preserve the Customer’s data to which Salt Labs may have access in the course of provision of the Services, Salt Labs cannot accept any responsibility in the event that any data is corrupted or erased for any reason. The Customer accepts that it must maintain backup data in order to avoid any loss or damage arising from such corruption or erasure, and will indemnify and save Salt Labs and its employees harmless from any loss or damage howsoever arising as a result of any claim by the Customer or any third party as a result thereof.

12.2. The Customer acknowledges by entry into this Agreement that no promise, representation, warranty or undertaking has been made or given by Salt Labs or any person on its behalf in relation to the capacity, uses or benefits to be derived from use, profitability of or any other consequences of or benefits to be obtained from the provision of the Services, except as set out in this Agreement and any additional Statement of Work governed by this Agreement, and that the Customer has relied on its own skill and judgement in deciding to acquire the Services. In particular, the Customer acknowledges that Salt Labs does not and cannot warrant that any services will be uninterrupted, error free, or free of harmful components, or that any content will be secure or not otherwise lost or damaged.

12.3. In the event that the supply of any goods or services under this Agreement constitutes a supply of goods or services to a consumer as defined in the Competition and Consumer Act 2010 (Cth), as amended, or relevant State or Territory legislation (“the Acts”), nothing contained in this Agreement excludes, restricts or modifies any condition, warranty or other obligation in relation to this Agreement and the goods and services to be supplied hereunder, which pursuant to the Acts or any of them is applicable or is conferred on the Customer where to do so is unlawful. In any event Salt Labs’ sole liability for breach of any such condition, warranty or other obligation, including any consequential loss which the Customer may sustain or incur, shall be limited (except to the extent specifically set forth herein) to:

 a) In relation to services:

i. the supplying of the services again; or
ii. the payment of the cost of having the services supplied again as in each case Salt Labs may select.

12.4. Subject only to clause 12.3, all conditions and warranties which would or might otherwise be implied in this Agreement, whether by operation of statute, inference from circumstances, industry practice or otherwise, are hereby excluded.

12.5. Other than as set out in clause 15.3, and notwithstanding anything else in this Agreement, under no circumstances will Salt Labs be liable to the Customer:

a) in respect of any loss or damage suffered by the Customer in the nature of consequential, incidental, exemplary or indirect loss or damage, loss of profit, use or data, or loss of or damage to goodwill or any other opportunity or expectation benefit;
b) for any unanticipated down time of all or a portion of the services (or any systems or processes connected with the services) for any reason;
c) for any unauthorised access to, alteration of or deletion, destruction, damage, loss or failure to store any of the customer’s content or other data;
d) in respect of any liability of the Customer to any third party; or
e) in respect of any loss, damage or injury to the extent the aggregate of all liability for all claims under or incidental to this Agreement exceed the value of the aggregate of the fees paid hereunder during the period of 6 months prior to the date of claim, whether arising from the supply of the Services or any failure by Salt Labs to perform any obligation or observe any term of this Agreement

12.6. Salt Labs will not be liable in relation to any proceeding or claim which:

a) was caused by any act or omission of the Customer or its employees or agents; or
b) relates to actions of Salt Labs which were expressly or impliedly authorised by the Customer, or by the Customer’s employees or agents.

13. Confidentiality

13.1. Both parties will keep in confidence all information which it receives from the other which is marked in any way so as to indicate its confidentiality or which by its nature is confidential and will not, without prior written consent of the disclosing party, publish, disclose or otherwise make available, directly or indirectly, any item of such information to any person other than its employees, agents, or contractors who need to know the same in the performance of their duties. The receiving party further agrees that it will only use such confidential information in connection with the obligation arising as a result of the Agreement. Such confidential information does not include any data or information which:

a) was in the receiving party’s lawful possession prior to the submission thereof by the disclosing party,
b) is later lawfully obtained by the receiving party from a third party under no obligation of secrecy,
c) is independently developed by the receiving party, or
d) is, or later becomes, available to the public through no act or failure to act by the receiving party.

14. Force Majeure

 14.1. A Force Majeure event means anything outside reasonable control of a party, including but not limited to:

 a) power, date or communication outages;
b) Acts of God or the public enemy, national emergencies, radioactive contamination, insurrection, riot, hostile or warlike action or sabotage;
c) a transaction embargo;
d) industrial action (including a picket); and
e) any legislation or regulation and any action or inaction of any government or government agency.

 14.2 If Salt Labs is wholly or partially unable to perform its obligations because of a Force Majeure event, then:

a) as soon as reasonably practicable after the Force Majeure event arises, Salt Labs will notify the customer of the extent to which Salt Labs is unable to perform its obligations; and
b) Salt Labs’ obligation to perform will be suspended for the duration of the delay arising out of the Force Majeure event.

15. Personal Information

15.1. The Customer consents to Salt Labs from time to time, seeking, advising, exchanging and verifying any personal or commercial information of the Customer with any third party and to carrying out any further pertinent investigation about the Customer’s contact/address details, credit arrangements, trading terms, creditworthiness, credit standing, credit history or credit capacity, financial status etc.

16. Governing law 

16.1. This Agreement shall be governed by the law for the time being in the State of New South Wales.