Terms and Conditions
 

F3 and Client as defined below (each a Party and Cumulatively the Parties) agree that the following Terms and Conditions of F3 in addition to any Directions given to F3 by Client form an agreement between the Parties for the provision of services and the supply of any goods by F3 (Agreement).

 

Terms and Conditions of F3

1. The following defined terms have the corresponding meanings in this Agreement unless the context requires otherwise:

   1. Client means the legal person, who’s details appear in table 1 below, who engages the Services of F3;

   2. Deliverables means any one or combination of the following:

      1. Intellectual Property;

      2. reports;

      3. data;

      4. instructions;

      5. Other intangible property created by F3;

      6. chooses in action;

      7. goods;

      8. Products; or

      9. Other tangible property created by F3.

   3. Directions means any request, order, instruction, demand or brief made by Client and delivered to F3, whether in writing or otherwise, under which F3 is instructed to act;

   4. Event of Default has the meaning specified in clause 21.

   5. F3 means Scot Farley trading as F3 Industrial Design ABN 36 371 560 352;

   6. Intellectual Property means all industrial and intellectual property rights including, without limitation, patents, copyrights, circuit layout rights, right to extract information from databases, design rights, trade secrets, rights of confidence, domain names and all forms of protection of a similar nature or having similar effect to any of them which may subsist anywhere in the world (whether or not any of them are registered and including applications and the right to make applications for registration of any of them);

   7. Payment Default has the meaning specified in clause 10(b).

   8. Purchase Price means each of the following as notified by F3 and ordered or agreed by Client:

      1. consultancy fees;

      2. Royalty Amounts (as defined in the License and Royalty Annexure, if any); and

      3. reimbursements.

   9. Product means any tangible good delivered by F3 under this Agreement.

   10. Project means a Client project that incorporates F3’s Services or Products, as the case may be.

   11. Quotation has the meaning specified in clause 4.

   12. Reinstatement Fee has the meaning specified in clause 10(c).

   13. Services means any services provided by F3 under this Agreement.

2. These Terms and Conditions of F3:

   1. apply to the F3’s provision of Services or supply of Products, however described;

   2. form the conditions upon which F3 provides such Services or supplies such Products;

   3. may only be amended in writing signed by each of the Parties;

   4. may be supplemented by any Annexure to this Agreement, which is noted immediately above the signatures of the Parties, or as agreed in writing from time to time, and all such Annexures form part of this Agreement;

   5. and any Annexures and the document to which these Terms and Conditions of F3 are attached constitutes the entire agreement between the Parties with respect to the subject matter and prevail over and operate to the exclusion of any other terms and conditions not agreed to in writing and signed by F3;

   6. may be executed in counterparts and each counterpart is an original but the counterparts together are one and the same agreement; and

   7. are governed by the laws of Queensland, Australia.

3. Client acknowledges that:

   1. F3 is in the business of undertaking:

      1. research and development services;

      2. design services;

      3. procurement services;

      4. and other related services,

   2. in most cases, such services are undertaken in pursuit of obtaining an outcome for Client, the final form of which is not known to the Parties at the date of the Agreement, and as such are uncertain;

   3. Quotations for costs associated with the delivery of the Services or any Products by F3 are made on a best estimate basis only and are subject to change;

   4. that F3 or Client, as the case may be, may be subject to third party costs, and changes to such costs; and

   5. in providing Client with a solution that meets Client’s requirements, as agreed at the date of this Agreement or amended from time to time by the Parties, there may be further costs that are not foreseeable by either or both of the Parties until the full scope of the Products and Services have been quantified.

4. F3 will provide (each a Quotation):

   1. quotations for all Services and Products to be delivered to Client; and

   2. amended quotations at Client’s request, or where circumstances otherwise require.

5. Each Quotation:

   1. Is valid for 14 days from the date upon which it was prepared; or

   2. after 14 days may be either confirmed or amended by F3, at Client’s request,

but, in the case that Client agrees to the Quotation after the 14 days, Client agrees to pay any reasonable additional cost that applies to the equivalent Products or Services that may apply due to the delay caused by Client.

1. Each Client order, including a change order:

   1. must be given in writing to F3;

   2. is irrevocably open for acceptance by F3 for a period of 60 days after receipt of same by F3;

   3. may only be rescheduled if such rescheduling is agreed to by F3;

   4. may only be cancelled with the prior written consent of F3; and

   5. may only be cancelled or rescheduled upon Client’s request upon payment of a 25% surcharge (based on the then current order value) and F3’s agreement to same.

2. F3 may invoice Client fortnightly for all Products and Services, unless otherwise agreed in writing by the Parties from time to time; which may include payments at completion of any predetermined milestone or stage as set out in writing by F3.

3. Unless otherwise specifically agreed in writing by F3, the price of:

   1. Services;

   2. Products; or

   3. Deliverables,

are exclusive of: GST; taxes, levies, charges, any applicable duty; costs of shipping, transport, or delivery; costs of packaging; or any other associated incidental costs, all of which must be paid by Client in addition to any of the items listed (a) through (c), as required.

1. To the extent that Client wants to rely on an exemption for any of the imposts mentioned in clause 8, Client must provide F3 with such certificate of exemption that Client seeks to rely on. Client indemnifies and will keep F3 indemnified for any of F3’s costs relating to the validity or applicability of such certificate of exemption.

2. Client agrees to pay F3 the Purchase Price for all Services provided and Products supplied under this Agreement, and:

   1. Client must pay each invoice in full within its credit terms, which will not be less than 7 days, and in the event that there are no credit terms specified in an invoice, the credit terms are 14 days from the date of the invoice;

   2. if payment, or acceptable notification of payment, is not received by F3 within the credit terms of an invoice (Payment Default), F3 may cease some or all work at its sole discretion without notice to Client;

   3. if F3 ceases work due to Payment Default, Client agrees that F3 may charge a fee not exceeding 5% of the outstanding amount on any invoices which are due and payable multiplied by the number of weeks, or part thereof, that the Payment Default continued (Reinstatement Fee); and

   4. for clarity, F3 is entitled to not restart work until Client pays any outstanding amount, and any Reinstatement Fee notified to Client by F3.

3. Client agrees that F3 may invoice Client for anticipated fees and disbursements and that payment for such amounts must be made prior to F3 providing the relevant Services or supplying the relevant Products.

4. In addition to any other right, F3 may charge interest upon a Payment Default, at a rate of 12% per annum and accruing daily, on any amount due and payable from the day after the relevant invoice date.

5. In addition to any other right, where there is an ongoing payment default by Client, F3 may apply a payment from Client to any particular debt at F3’s sole discretion.

6. Risk associated with any Service, Deliverable or Product passes to Client from F3 at the earlier of:

   1. delivery to Client, by whatever means; or

   2. delivery to a common carrier or other intermediary for shipment to Client.

7. Client assumes all risk associated with any goods from third parties, during transit and while in F3’s possession for any reason. F3 agrees to take all due care of such goods, and to act in accordance with any reasonable instruction of Client, at Client’s cost, but disclaims any liability in relation to same.

8. F3 may withhold any Deliverables so long as any invoiced amount remains outstanding. Client agrees that it is responsible for any delays of a Project that arise in relation to this clause 16, and holds F3 harmless in relation to same.

9. Title to all Products and Deliverables remains with F3 until payment in full of the Purchase Price.

10. Title to any Products and Deliverables may only be assigned in writing, and such written assignment is valid only if signed by F3.

11. Unless specifically provided for in this Agreement, F3 does not license Client to use the Deliverables for any purpose prior to title passing to Client in accordance with this Agreement.

12. Upon an Event of Default by the Client, F3 may immediately terminate this Agreement by written notice (of which an electronic message or facsimile is sufficient), at its sole unfettered discretion. Such notice is binding regardless of whether the Client receives or is capable of receiving same.

13. For the purpose of this Agreement Event of Default means:

    1. a Payment Default which continues for more than 30 days;

    2. in a case where the Client is an individual, the Client becomes an insolvent under administration as defined in section 9 of the Corporations Act 2001 (Cth); or

    3. in a case where the Client is a body corporate:

       1. without the prior written consent of F3, the controlling shareholding in the Client transfers to another party;

       2. the body corporate is or states that it is insolvent;

       3. the body corporate takes any step to obtain protection or is granted protection from its creditors, under any applicable legislation, or an administrator or a liquidator is appointed to the body corporate; or

       4. a third party or the body corporate, as the case may be, makes an application to a court, resolves or otherwise takes action to wind up the body corporate.

14. Upon termination by F3 pursuant to clause 20:

    1. any duty of confidence of F3 to Client immediately comes to an end; and

    2. F3 may do whatever it deems necessary with the Deliverables to minimise its loss; including but not limited to selling or licensing the Deliverables to another party.

15. Either Party may terminate this Agreement with at least 60 days written notice. Upon termination of this Agreement pursuant to this clause 23, the Parties must continue to advance the Project and make all payments for work completed until the termination date.

16. As prototypes vary from manufactured components there is a limit to the amount of testing that can be done on these parts.  It is the Client’s responsibility to complete suitable and thorough testing of the manufactured components, parts, products and systems before going to market or using the product in any form.

17. To the maximum extent permitted by law, F3 will not be liable to Client in relation to any Product, Service, or Deliverable whether in contract, tort or otherwise, including for negligence, for: loss of profits, loss of use, loss of opportunity; or for any incidental, consequential, special or indirect damages (Special Damages) however caused, and whether or not F3 has been advised of the possibility of such loss or damage.

18. To the maximum extent permitted by law, F3’s maximum liability for a matter to which these Terms and Conditions apply, is the amount invoiced by F3 to Client and received by F3 from Client.

19. Client will indemnify, defend and hold F3 harmless from and against any and all actions, suits, claims, demands, proceedings, losses, damages, Special Damages, compensation, sums of money, costs (including solicitor and client costs), charges and expenses related to any Deliverable used by Client, or any Product which is manufactured by, for, or pursuant to an agreement with, Client; including claims made by third parties.

20. Client must hold relevant and sufficient insurance, not limited to public liability insurance, to protect itself and F3 from any and all claims related to any Products or Deliverables. As F3 has no control over Client’s use of the Products or Deliverables, Client must ensure that F3 is included on the insurance policy as an interested party.

21. Unless specifically agreed otherwise in writing by the Parties, F3 may use information relating to the products designed by F3 for Client for self-promotion in various forms, which may include without limitation publishing information on the internet.

22. Third party suppliers may be required to complete a Project. F3 may be able to provide contact information or recommendations in relation to third party suppliers, but Client must engage such third parties directly and agrees that F3 has no responsibility for the performance of any third party, or any consequences of Client engaging such third party.

23. F3 warrants that:

    1. F3 will conduct the Services including any design, testing, review and staged development processes in good faith and with the aims of developing a suitable product, minimising costs where possible and minimising risks associated with any Product where possible; and

    2. all Deliverables, but particularly research and development outcomes will be the result of F3’s independent investigations and work, not the work of any other party, unless specified otherwise.

24. F3 makes the following disclaimers:

    1. F3 does not, and will not, procure or maintain any insurance for the benefit of Client;

    2. F3 has no liability to Client for any orders not accepted by F3;

    3. unless specifically included in a Direction and agreed in writing by F3, F3 makes no warranties in relation to Client’s use, the applicability, or the fitness for any particular purpose of any Deliverable or Product, and disclaims any liability for same;

    4. the development of a Product for Client is contingent on a number of variables, and F3 cannot guarantee that a Deliverable will be able to satisfy all of Client’s requirements;

    5. where F3 needs to use third parties to provide particular services, whether introduced by Client or otherwise, F3 will take all reasonable care to ensure that Client’s confidential information is maintained as confidential, but cannot guarantee that any third party will maintain the confidential nature of the information supplied to it by F3 or Client.

25. Client may not assign this Agreement, or any entitlement it has or may have under this Agreement without the prior written consent of F3.

26. F3 may assign its rights under this Agreement by written notice to Client.

27. The Parties agree to use their best efforts to resolve any disputes by negotiation, but if such efforts do not resolve the dispute, the Parties agree to engage the a Mediator to resolve the dispute and to each pay half of the Mediator’s costs in relation to same.

 

This Agreement, including the Annexures listed below, between F3 and Client who’s particulars are included in Table 1 below is dated __/__/____.

Annexure A – Nil

Annexure B – Nil

Table 1

 

 

 

Client Name and Proposal Number

 

Client ABN/ACN (if any)

 

Signature

Please sign here to initiate the project if you do not have your own purchase order form.

 

Tick if Client an individual or partnership

☐Tick if Client is a company

☐Tick if Client is an individual

Name of Signatory

Print Name of Signatory

 

Authority of Signatory

(Please tick whichever applies)

☐Client

☐Partner

☐Authorised Agent

☐ Director

☐Secretary