Terms and Conditions

Section 1 - Terms

The agreement governed by these Terms and Conditions (Terms) are between Harry David Consulting Pty Ltd trading as RevX, ACN 638 135 654, and “the client” by using RevX’s services, Company assents to and accepts these Terms and acknowledges it has read and understands the Terms.

1. Framework

These Terms establish an agreement that will enable RevX to provide to Company the Services set out in Section 2 - Schedule and govern all purchases and use by Company of the Services.

2. Affliates

Affiliate means an entity that owns or controls, is owned or controlled by, or is under common control or ownership with a party, where “control” is the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of an entity, whether through ownership of voting securities, by contract orotherwise.

3. RevX Employees

RevX Employee means an employee of RevX or its Affiliates.

4. Onsite Obligations

If a RevX Employee is working on Company’s premises (a) Company will provide a safe and secure working environment for RevX personnel, and (b) RevX will comply with all reasonable workplace safety and security standards and policies, applicable to Company’s employees, of which RevX is notified in writing by Company in advance.

5. Changes to Work and Delays

Changes to the Services will be made only in writing signed by both parties. In the event that (a) Company fails to fulfil its obligations under these Terms in a timely manner, and this failure adversely impacts the provision of Services, or (b) events outside of either party’s reasonable control cause a delay in or otherwise affect RevX’s ability to perform its obligations under the Terms, RevX will be entitled to appropriate relief, including adjusting the timing of its delivery of applicable Services and will not be liable for any damage suffered by Company.

6. Information

Company will provide information and will cooperate as reasonably required by RevX to effectively provide the Services.

7. Timelines

RevX and Company will complete their responsibilities under these Terms in a timely manner.

8. Employee Restraint

From the Effective Date and for a period of 12 months from the date of termination pursuant to these Terms (Restraint Period), Company or any of its officers, employees, subcontractors or agents or any combination of them must not, directly or indirectly, induce or attempt to induce any employee of RevX or its Affiliates to terminate the employee’s employment with RevX or its Affiliates, whether or not that termination would be a breach of that employee’s contract of employment.

9. Client Restraint

During the Restraint Period, Company or any of its officers, employees, subcontractors or agents or any combination of them must not, directly, or indirectly, solicit or persuade any customer, client or supplier or potential customer, client or supplier of RevX or its Affiliates to cease doing business with RevX or its Affiliates or reduce the amount of business done with RevX or its Affiliates.

10. RevX Restraint A

During the Restraint Period, RevX and its Affiliates must not, directly, or indirectly, make an offer of employment or the provision of services to any employee of the Company or its Affiliates.

11. RevX Restraint B

During the Restraint Period, RevX or any of its officers, employees, subcontractors or agents or any combination of them must not, directly, or indirectly, solicit or persuade any applicant, customer, client or supplier or potential applicant, customer, client or supplier of the Company or its Affiliates to cease doing business with the Company or its Affiliates or reduce the amount of business done with the Company or its Affiliates.

12. Replacement
  1. If a RevX Employee made available to Company as part of the Services performs unsatisfactorily in the position for which the employee was deployed and Company requests that the deployment cease, RevX will use its best endeavours to present a replacement candidate at no extra fee.
  2. RevX’s obligation to replace pursuant to Section 12.a. arises only if: (a) Company has requested the employee’s deployment cease due to performance and not for reasons beyond the control of RevX, including but not limited to restructuring, economic circumstances, insolvency or substantial change from the original position description, (b) Company pays or has paid all invoices by their due dates, (c) Company notified RevX in writing of any performance matters as they arose and gave RevX the opportunity to resolve those matters, and (d) Company is not in breach of any of these Terms.
13. Term

The agreement between RevX and Company governed by these Terms begins on the earlier of the date set out in Section 2 - Schedule or the date that Company uses RevX’s services (Effective Date). The term continues for 6 months from the Effective Date (Initial Term) and, thereafter, automatically renews for successive terms of 6 months.

14. Termination of Agreement

The agreement governed by these Terms will terminate on the expiration of 60 days following written notice of termination of the agreement given by one party to the other and the payment by Company of any monies outstanding.

15. Material Breach

If RevX or Company materially breaches the Terms, and such breach is not cured within 30 days after written notice of the breach is given to the breaching party, the other party may, by giving written notice of termination to the breaching party, terminate the agreement. Without prejudice to any other right or remedy of RevX, in the event either party terminates under this Section 3.4, the Company will pay RevX for all Services provided up to the effective date of termination.

16. Fees and Expenses

Fees for the Services (Fees) are set out in the Section 2 – Schedule and do not include out-of pocket expenses. Company will reimburse RevX for all reasonable and agreed expenses RevX incurs in connection with the performance of Services. Company agrees to pay RevX the applicable Fees for each Service.

17. Invoices

RevX will invoice Company for Fees (a) on the Effective Date, and (b) monthly in advance thereafter. All invoices are stated in Australian dollars and Company will pay to the bank account specified in each invoice the Fees and any expenses no later than 7 days from the date of each invoice. Any and all payments are non- refundable except as otherwise provided in these Terms. RevX reserves the right to suspend or cancel performance of all or part of the Services in the event Company is more than 14 days past due on any undisputed invoice.

18. Fee Review

Prior to the 12-month anniversary of each year, RevX reserves the right to review the Fee in line with Company performance and value added. If agreed, Company will be notified in writing and the modified fee will take effect from the subsequent invoice onwards.

19. Taxes

All Fees are exclusive of Taxes. Company will pay RevX an amount equal to any Taxes arising from or relating to this agreement or an applicable Order Form that are paid by or are payable by RevX. Taxes means any form of sales, value added or other form of taxation and any associated fines, penalties, surcharges, or interest, but excluding any taxes based solely on the net income of RevX. Taxes include GST (as defined in the A New Tax System (Goods and Services Tax) Act 1999 and associated legislation and regulations. If GST is imposed on any supply made under these Terms, Company will pay to RevX the amount of GST imposed upon that supply in addition to the Fees. If Company is required to withhold or deduct any portion of the payments due to RevX, Company will increase the sum payable to RevX by the amount necessary so that RevX receives an amount equal to the sum it would have received had Company made no withholdings or deductions.

20. Obligations

From the Effective Date and for 2 years following initial disclosure of Confidential Information, RevX shall regard as confidential and shall not disclose to any person other than in accordance with this Clause (20) any Confidential Information acquired or received by RevX in or in connection with or as a result of the provision of the Services. Confidential Information means any information about Company and its Affiliates and their respective businesses that is confidential and is not in the public domain other than due to a breach of these Terms and includes but is not limited to any document, book, accounts, marketing or sales plan, employee information, ideas, concepts, know-how, patents, specifications, drawings, designs, trade secrets, information regarding financial and dealings with a client or supplier or prospective client or supplier.

  1. Precautions and Notification.
    RevX must take all reasonable and necessary precautions to maintain the secrecy and prevent disclosure or unauthorised use of Confidential Information. RevX must immediately advise Company on becoming aware of a breach of this Clause (20) and must take all steps necessary to mitigate the release of Confidential Information.
  2. Exclusions
    Confidential Information will not include information that: (a) is or later becomes publicly available without breach of these Terms or is disclosed by Company without obligation of confidentiality, (b) is known to RevX at the time of disclosure by Company, (c) is independently developed by RevX without use of the Confidential Information, (d) becomes lawfully known or available to RevX without restriction from a source having the lawful right to disclose the information, or (e) is generally known or easily ascertainable by parties of ordinary skill. RevX will not be prohibited from complying with disclosure mandated by applicable law, if, where reasonably practicable and without breaching any legal or regulatory requirement, it gives Company advance notice of the disclosure requirement.
  3. Permitted Disclosures.
    Confidential Information may be disclosed only to employees, agents and contractors of RevX with a need to know in order to provide the Services and those employees, agents and contractors are made aware that the information is Confidential Information and agree to be bound by this Clause (20) as if they were parties to this agreement, and to its auditors and legal counsel, in each case who are under a written obligation to keep such information confidential using standards of confidentiality not less restrictive than in these Terms.
  4. Retained by Company.
    RevX unconditionally and irrevocably assigns to Company and its Affiliates all existing and future Intellectual Property (defined below) rights in any document or thing that RevX creates or to which it contributes in the course of providing the Services (other than Intellectual Property produced for internal RevX management purposes). RevX may not make use of or reproduce any Intellectual Property owned by Company and its Affiliates without that entity’s prior written consent, which Company may withhold at its absolute discretion, other than in the ordinary course of providing the Services.
  5. Precautions and Notification.
    Intellectual Property means all present and future rights to intellectual property including any inventions and improvements, trademarks (whether registered or otherwise), designs, copyright, any corresponding property rights under the laws of any jurisdiction and any rights in respect of an invention, discovery, trade secret, secret process, know-how, concept, idea, information, process, data or formula.
  6. Retained by Company.
    Company and its Affiliates own all Property, documents or assets produced by RevX in the performance of the Services (other than items produced for internal RevX management purposes) and RevX must deliver or return to Company or its Affiliates all copies and originals of all Property, documents or assets produced by RevX in the performance of the Services and all Property originating from Company or its Affiliates on the termination of this agreement or upon request by Company. Property includes any property of Company or its Affiliates (including property leased by or in the custody or possession of Company or its Affiliates) including all written or machine readable material, software, computers, credit cards, keys, mobile telephones, security passes and vehicles; and any document (including any form of electronic record) that includes any Confidential Information or that relates to the business of Company or its Affiliates or a customer or supplier of Company or its Affiliates.
21. General Representations and Warranties

RevX represents and warrants that: (a) it and its Affiliates will use reasonable skill and care in providing the Services, (b) the Services will be performed in a professional and workmanlike manner by qualified personnel, and (c) it has the authority to enter into this agreement with Company.

22. Disclaimer of Warranty

To the maximum extent permitted by applicable law, the Services provided by RevX are provided ‘as is’ and without warranty of any kind, either expressed or implied, including, but not limited to, the implied warranty of fitness for a particular purpose. RevX does not guarantee that the use of the Services will be uninterrupted, comply with regulatory requirements or be error free. For the breach of warranties set forth in Clause (22), Company’s exclusive remedy and RevX’s entire liability will be the re- performance of deficient Services or, if RevX cannot substantially correct a breach in a commercially reasonable manner, Company may terminate the relevant Services and receive a pro rata refund of the Fees paid for the deficient Services as of the effective date of termination. Company agrees that it is solely responsible for the results obtained from the use of the Services.

23. Disclaimer of Damages

Notwithstanding anything to the contrary contained in these Terms in no event will RevX or its Affiliates be liable to Company or its Affiliates for damages other than direct damages, including without limitation, any indirect, special, incidental, consequential, exemplary or punitive damages, whether in tort, contract or otherwise; or any damages arising out of or in connection with any malfunctions, regulatory non-compliance, delays, loss of data, lost profits, lost savings, interruption of service, loss of business or its anticipatory profits, even if RevX or its Affiliates have been advised of the possibility of such damages. Liability for these damages will be limited and excluded even if any exclusive remedy provided for in these Terms fails in its essential purpose.

24. Limitation of Liability

For all events and circumstances, RevX and its Affiliates’ aggregate and cumulative liability arising out of or relating to these Terms and all Order Forms including without limitation on account of performance or non-performance of obligations, regardless of the form of the cause of action, whether in contract, tort (including without limitation negligence), statute or otherwise will be limited to direct damages and will not exceed the amounts received by RevX from Company during the 12 months immediately preceding the first event giving rise to liability, with respect to the particular item (whether Services or otherwise) giving rise to liability under the most applicable ordering document. Nothing in these Terms is intended to exclude or limit RevX’s liability for death or personal injury caused by negligence or fraud.

25. Notices

Notices must be in English, in writing and will be deemed given when delivered by hand or 2 days after being sent by a method that provides for positive confirmation of delivery to the respective addresses or email addresses indicated in an Order Form; provided that any notice from Company to RevX includes a copy by email to: david@revx.com.au

26. Novation

RevX reserves the right, upon written notice and without the prior approval of Company, to novate all or part of its rights and obligations under the agreement governed by these Terms provided such novation is on terms no less favourable to Company than these Terms.

27. Third Party Rights

Except for the parties’ Affiliates as expressly provided in these Terms, a person who is not a party to this agreement will have no right to enforce the Terms.

28. Independent Contractor

RevX is an independent contractor and nothing in these Terms or related to RevX’s performance of any Services will be construed to create an employment or agency relationship between Company (or any Company personnel) and RevX (or any RevX personnel including but not limited to any employee whose services are made available to Company under these). Each party will be solely responsible for supervision, direction, control and payment of its personnel, including applicable taxes, deductions, other payments and benefits.

29. Privacy

Company acknowledges and agrees that to provide the Services it may be necessary for Company Confidential Information to be transferred between RevX and its Affiliates, who may be located worldwide.

30. Marketing

With Company’s written consent, RevX may include Company’s name and logo in a customer list or other marketing materials and announcements.

31. Entire Agreement

These Terms and all attachments and exhibits constitutes the exclusive terms and conditions and represents the final, complete and exclusive statement of the agreement between the parties with respect thereto, notwithstanding any prior written agreements or prior and contemporaneous oral agreements. Any claim relating to the provision of the Services by RevX, its Affiliates or their respective
personnel will be made against RevX alone.

32. Force Majeure

Neither party will be liable for any delay or failure in performance due to causes beyond its reasonable control.

33. Severability

If any provision of these Terms is held invalid or unenforceable for any reason but would be valid and enforceable if appropriately modified, then such provision will apply with the modification necessary to make it valid and enforceable. If such provision cannot be so modified, the parties agree that such invalidity will not affect the validity of the remaining provisions of these Terms.

34. Waiver

The delay or failure of either party to exercise any rights under these Terms will not constitute or be deemed a waiver or forfeiture of such rights. No waiver will be valid unless in writing and signed by an authorised representative of the party against whom such waiver is sought to be enforced.

35. Dispute Resolution; Governing Law

The validity, interpretation and enforcement of these Terms will be governed by and construed in accordance with the laws of Western Australia without giving effect tothe conflicts of laws provisions thereof or the United Nations Convention on Contracts for the International Sale of Goods. Each party irrevocably agrees that the courts of Western Australia will have non-exclusive jurisdiction to settle any dispute or claim that arises from or in connection with these Terms and all Order Forms. Each party agrees to give the other a written description of any problem(s) that may arise and to make a good faith effort to amicably resolve any such problem before
initiating legal proceedings.

36. Headings

All headings contained in these Terms are inserted for identification and convenience and will not be deemed part of these Terms for purposes of interpretation.

37. Amendment

Neither these Terms nor any Order Form may be amended or modified except in a writing signed by the parties, which writing makes specific reference to these Terms or the applicable Order Form.

38. Counterparts and Soft Copy Signature

In the event the agreement is executed with signatures, it may be executed in counterparts, each of which will be deemed an original and all of which will constitute one and the same document. The parties may exchange signature pages by email and such signatures will be effective to bind the parties to all these Terms. For the avoidance of doubt, by using RevX’s services, Company assents to and accepts these Terms and acknowledges it has read and understands the Terms.