1. In this Agreement, unless the context requires otherwise the following definitions apply:
“Agreement” means these terms of consultancy and the Proposal;
“ARRB” means ARRB Group Ltd;
“Client” means the per son named and described as such in the Proposal;
“Client Material” means data, information or other material to be supplied by the Client to enable the Consultancy to be carried out;
“Consultancy” means the consultancy to be carried out by ARRB as set out in the Proposal;
“Consultancy Discoveries” means any inventions, discoveries, works, improvements, innovations created by ARRB as a direct result of carrying out the Consultancy including those disclosed and/or subsisting in the Results of the Consultancy;
“Intellectual Property Rights” means statutory and other rights in respect of property rights, patents, circuit layouts, copyrights confidential information and all other intellectual property rights as defined in Article 2 of the Convention Establishing the World Intellectual Property Organisation of July 1967;
“Proposal” means the writing accompanying these terms of business which details the Consultancy;
“Results of the Consultancy” means the reports, samples, prototypes, artefacts and other deliverables as set out in the Proposal arising from the carrying out of the Consultancy.
Results of the Consultancy does not include Consultancy Discoveries;
“Third Party Claim” means any claim by or judgment or award in favour of a third party arising directly or indirectly out of the use or exploitation of the Results of the Consultancy and/or Consultancy Discoveries by the Client.
2.This Agreement contains the whole of the agreement between ARRB and the Client with respect to the Consultancy and supersedes any and all other representations or statements by either party or its officers, employees, or agents whether oral or in writing, whether made prior or subsequent to the date of this Agreement.
3. ARRB must carry out the Consultancy in accordance with the Proposal and otherwise in accordance with the terms of this Agreement.
4. If Client Material is required to be supplied by the Client in order for ARRB to carry out the Consultancy:
a) the timing of the supply and the content and format of the Client Material will be as described in the Proposal or advised to the Client by ARRB at the commencement of the
b) ARRB shall not be liable for any delays or extra expenses resulting from a failure by the Client to provide the Client Material by the specified date or dates, or in accordance with the specified content or format;
c) the Client warrants the accuracy of all Client Material supplied.
4A. In the event that Client Material is not supplied by the Client as specified by ARRB, ARRB may seek written approval from the Client, which shall not be unreasonably withheld, to use substitute data, information or other material and adjust the Proposal as necessary in
order to fulfil the Consultancy, provided that ARRB:
a) submits to the Client a written description of the nature of the substitute data, information or material;
b) advises the Client of the potential effects of the use of the substitute data, information or material on the Consultancy, including the Results of the Consultancy; and
c) if the use of substitute data, information or material is likely to result in extra expenses to ARRB in carrying out the Consultancy, provides the Client with an estimate of the extra expenses.
4B. The Client is liable for payment of any extra expenses reasonably incurred by ARRB as a result any delays in the supply of Client Material as described in Clause 4 b) and any approvals granted under Clause 4A, which shall be added to the consultancy fee set out in the Proposal.
5. Subject to Clause 4B, in consideration of ARRB carrying out the Consultancy, the Client must pay ARRB the consultancy fee set out in the Proposal at the time and in the manner
set out therein.
6. ARRB must deliver to the Client the Results of the Consultancy at the time and in the manner set out in the Proposal provided that if the consultancy fee is not paid as aforesaid the Client shall have no rights whatsoever to the Results of the Consultancy which shall be retained by ARRB and used for such purposes as ARRB deems fit.
7. The Consultancy Discoveries and the Intellectual Property Rights subsisting therein shall belong to ARRB and to the extent that the Client may hold any interest in or to any
Intellectual Property Rights existing now or in the future in respect of any Consultancy Discoveries, the Client hereby assigns to ARRB all of its right tile and interest in and to such Intellectual Property Rights. Subject to the Client complying with its obligations under this Agreement, ARRB hereby grants to the Client an non-exclusive, non-transferable, royalty free and perpetual licence to use the Consultancy Discoveries and such Intellectual Property Rights to the extent that such use is necessary for the proper use and enjoyment by the Client of the Results of the Consultancy.
8. ARRB shall not be liable for any failure to carry out the Consultancy where such failure is due to any cause beyond the reasonable control of ARRB.
9. ARRB either alone or in association with others, shall have the right to conduct research independent of the Consultancy, whether within or outside the field of endeavour in which the Consultancy is being conducted, without being required to account to the Client in any way whatsoever.
10. Each party must treat the terms of this Agreement and all confidential information owned by the other party as confidential. Each party’s obligations of confidentiality in this clause shall survive termination of this Agreement and shall continue until the confidential information disclosed to it lawfully becomes part of the public domain.
11. The Client shall use the Results of the Consultancy and the Consultancy Discoveries at its own risk and where required by ARRB the Client must maintain adequate professional
indemnity, product liability and third party liability insurance for the benefit of the Client and ARRB in respect of the Client’s use of the Results of the Consultancy and the
Consultancy Discoveries. The Client must provide to ARRB upon request a certificate of currency of such insurance. Breach by the Client of its obligations under this clause shall
result in termination of any licence granted to it under this Agreement and the vesting in ARRB of ownership of the Results of the Consultancy which shall be returned to ARRB
forthwith upon request. The Client’s obligations under this clause 11 shall survive expiration or earlier termination of this Agreement for a period of ten (10) years after such
expiration or earlier termination as the case may be.
12. The Client hereby agrees and acknowledges that:
a) ARRB warrants only that it shall carry out the Consultancy according to proper professional standards;
b) ARRB has not made any and hereby excludes all warranties, terms, conditions or undertakings, whether express or implied, written or oral, statutory or otherwise including
any implied warranty of merchantability of or fitness for a particular purpose in respect of the Results of the Consultancy and/or the Consultancy Discoveries. To the full extent
permitted by the laws of the Commonwealth of Australia or of any State or Territory of Australia having jurisdiction, any conditions or warranties imposed by such legislation are
hereby excluded. In so far as liability under or pursuant to such legislation may not be excluded, such liability is limited, at the exclusive option of ARRB, to:
(i) the re-performance of the Consultancy; or
(ii) the payment of the cost of having the Consultancy performed again; and
c) without limiting the generality of clause 12(b) hereof it is agreed that, to the full extent permitted by the laws of the Commonwealth of Australia and any State or Territory of Australia having jurisdiction, ARRB will not be liable for any special, indirect or consequential damages arising under or pursuant to this Agreement.
13. Without limiting the generality of clause 12 hereof, the Client hereby further acknowledges and agrees that:
a) the Client must obtain any approvals, authorisations and accreditations necessary or desirable to enable it to use the Results of the Consultancy and/or the Consultancy Discoveries;
b) while ARRB may discuss with the Client requirements for obtaining any approvals, authorisations and accreditations necessary or desirable to enable the Client to use the
Results of the Consultancy and/or the Consultancy Discoveries, ARRB has not made and does not by entering into this Agreement make any representations or give any warranties
regarding the suitability of the Results of the Consultancy and/or the Consultancy Discoveries for such purposes;
c) if any Commonwealth or State taxes or duties (including stamp duty) are payable in respect of this Agreement, the payment of same shall be the responsibility of the Client;
d) ARRB has not made and does not by entering into this Agreement make any representations or give any warranties that this Agreement or the Consultancy is structured so as to entitle the Client to obtain any form of taxation relief or concession under the Income Tax Assessment Act 1936 (Cth), (whether pursuant to section 73B of that Act or otherwise) or under any other Commonwealth or State legislation. The Client agrees that it shall be responsible for making its own inquiries with respect to these matters;
e) ARRB has not made and does not by entering into this Agreement make any representation or warranty, express or implied, that the Results of the Consultancy and/or the Consultancy Discoveries do not infringe any third party’s Intellectual Property Rights; and
f ) the Client must make all inquiries to determine:-
(i) the fitness for purpose, suitability and merchantability of the Results of the Consultancy and/or the Consultancy Discoveries; and
(ii) that the exploitation or use of the Results of the Consultancy and/or the Consultancy Discoveries will not give rise to any Third Party Claim;
and the Client shall indemnify ARRB, its officers, employees, sub-contractors and agents and keep them indemnified in respect of any Third Party Claim and any non-compliance by
the Client of its obligations under this clause. The Client’s obligation to so indemnify ARRB, its officers, employees, sub-contractors and agents is a continuing obligation separate and independent of the client’s other obligations and shall survive expiration or where relevant, earlier termination of this agreement.
14. If a dispute arises between the parties out of or relating to this Agreement (the “Dispute”), any party seeking to resolve the Dispute must do so strictly in accordance with the provisions of this clause. Compliance with the provisions of this clause is a condition precedent to seeking relief in any court or tribunal in respect of the Dispute.
A party seeking to resolve the Dispute must notify the existence and nature of the Dispute to the other parties (“the Notification”). Upon receipt of a Notification the parties must refer resolution of the Dispute to their respective chief executive officers or their nominees. If the Dispute has not been resolved within thirty days of receipt of the Notification then any party may refer the Dispute to mediation and must do so before initiating proceedings in a court to resolve the Dispute. Any Dispute which is referred to mediation must be referred to the Australian Commercial Dispute Centre Limited (“ACDC”) and be conducted in accordance with the Conciliation Rules of ACDC. If the Dispute has not
been resolved within sixty (60) days of referral to ACDC either Party is free to initiate proceedings in a court. Nothing in this clause 14 shall prevent a party from seeking interlocutory relief through courts of appropriate jurisdiction.
15. This Agreement shall in all respects be construed as an agreement made in the State of Victoria and subject to the laws of that State. Each party irrevocably and unconditionally submits to the non exclusive jurisdiction of the courts of the State of Victoria and courts of appeal from them for determining any dispute concerning this Agreement.
16. The invalidity or unenforceability of any one or more of the provisions hereof shall not invalidate or render unenforceable the remaining provisions of this Agreement. Any illegal or invalid provision of this Agreement shall be severable and all other provisions shall remain in full force and effect.
17. Any failure by a party to compel performance by the other party of any of the terms and conditions of this Agreement shall not constitute a waiver of those terms or conditions, nor shall it effect or impair the right of the first mentioned party to enforce them at a later time or to pursue remedies it may have for any subsequent breach of those terms or conditions.
18. Neither this Agreement nor any term thereof may be amended or waived except by a written instrument signed by each of the parties hereto.
19. Each party enters this Agreement as independent contractor. Nothing herein shall create any other relationship between them including, without limitation any relationship of
partnership, agency, trust, joint venture or otherwise.