Fruition Partners Standard Terms
These terms apply to the supply of Product and Services by Fruition Partners Australia Pty Ltd (ABN 55 124 654 520).
Fruition Partners Australia (“FPA”) has agreed to provide services to its Customers from time to time and as may be detailed in proposals, SOW’s or Purchase Orders. Such services are delivered subject to these Standard Terms.
i. Service(s): mean consulting work, warranty, maintenance, support, time and materials work as available from FPA from time to time and as set out in a Statement of Work.
ii. Product(s): means hardware and software which are resold by FPA subject to manufacturer’s specifications, software licenses and warranties.
iii. Statement of Work (SOW): means a quote or document issued by FPA describing Product and or Services deliverables, payment schedules, service levels and any other relevant terms and conditions.
iv. FPA means Fruition Partners Australia Pty Ltd ABN 55 124 654 520 and its subsidiaries (FPA).
b. Charges and Payment: Charges for Products and Services are FPA’s then current published rates or as agreed in a SOW. Services charges commence as agreed in a SOW. Recurring license, support and/or maintenance charges are billed in advance.
c. Payment and Credit Terms. All invoices are due and payable upon presentation and, at the latest, within 30 days of invoice receipt. Upon application, FPA may grant extended credit terms otherwise payments of invoices are due on delivery of work or products as noted preceding. If approved credit terms are exceeded, FPA may suspend all work and deliveries and all monies become immediately due and payable. Late payments may attract an interest charge of 12% per annum applied daily.
d. Variations. For Services, FPA may revise its charges each 12 months but such variations will not exceed the changes in the Australian Consumer Price Index (CPI) — National All Groups. Any quotes are valid for 30 days only and all orders are subject to acceptance by FPA. Product(s) and Services sourced from overseas are subject to exchange rate fluctuation and FPA may vary its price to take into account changes in exchange rate as at invoice date.
e. Term and Renewals: Each SOW commences on the earlier of when FPA signs it or commences to deliver Product or Services. The term is perpetual until terminated by either party by giving at least 60 days written notice.
f. Taxes: Charges are inclusive of any overseas taxes and local customs but are exclusive of any GST. FPA may revise its pricing to cater for new taxes or duties that may be imposed.
g. Amendments: No terms in a customer invoice or purchase order amend or override this Agreement and shall be deemed to be null and void. Any amendments to these Terms or a SOW must be in writing signed by both parties.
h. Delivery and installation charges: Charges, unless otherwise stated in a SOW, exclude delivery and installation fees. Any non-standard delivery requirements (e.g. stairs, hoists, difficult or narrow access) will require a site inspection and additional charges may apply. Travel charges may apply outside of capital cities.
i. Acceptance. Products are accepted on delivery. Services are accepted on completion of the work or if on a time and materials basis, on signature of the relevant timesheets. Any defects shall be advised to FPA in writing with a reasonable period of time to allow FPA to remedy the same under warranty.
j. Customer Obligations: Customer shall a) provide competent and experienced resources, facilities and conduct reviews and approvals as set out in the SOW or as reasonably required by FPA. In the event of delays, the schedule will be adjusted and any additional costs incurred will be payable by the Customer; b) be responsible for all site approvals (including landlord and council applications if any), cabling, power and/or environment preparation; and c) be responsible for all data security and backups and will implement suitable antivirus protection measures.
k. Termination. Either party may terminate this Agreement in whole or in part if the other party is in breach or default of its obligations and fails to remedy the same within 30 days of written notice. No termination for convenience is permitted. Either party may immediately and without notice terminate this Agreement in the event the other party enters into any form of receivership, administration or liquidation.
I. Warranties: Services are warranted to be performed using all requisite care and skill and workmanship. Products are warranted as new and may contain refurbished components. FPA assigns to Customer any end user warranty period and warranties provided by the manufacturer. Warranty uplift service is an additional Service provided by FPA to supplement the manufacturer’s warranty and Customer assigns to FPA the right to claim under that manufacturer’s warranty. FPA does not warrant that Products are error free or will not fail in operation.
m. Site Safety: Customer shall ensure that all work site(s) are safe and comply with all relevant occupational health and safety laws and regulations. FPA may suspend or refuse service if conditions at the site are in its reasonable opinion unsafe.
n. Limit of Liability: Notwithstanding any other provisions in this agreement or implied bylaw, FPA’s cumulative liability during the term (and any renewals) for all actions, claims and defaults including negligence will be limited in aggregate as follows:
a.For injury to or death of natural persons or damage to or loss of tangible property is limited to its insurances;
b.for breach of confidentiality will be determined by law;
c. For any other damage or loss, is limited to the lesser of either i) the amount of actual direct damage or loss, or (ii) the greater of $500,000 or 200% of the amount paid by you to FPA in the last 12 month period in relation to actual the Services and/or Products that gave rise to the claim.
In no event shall FPA be liable for any special, incidental, indirect, economic or consequential damages or for loss of profit, revenue or data howsoever caused, regardless of whether FPA could foresee or was advised of the possibility or likelihood of such loss or damage. Unless this clause is amended in a specific SOW, Products and Services supplied by FPA are not designed to be used in high risk and/or life support environments where errors or failures could lead to injury or death without adequate fail safe and redundancy systems.
o. Statutory Rights: If FPA is in breach of a condition or warranty implied by the Australian Consumer Law (or similar legislation), then FPA’s liability, to the extent permitted by law, is limited at its option, to the repair or replacement of the goods or paying the cost of having the goods repaired or replaced.
p. Delays: FPA shall not be liable for the consequences of any delays or inability to perform caused by circumstances or events beyond the reasonable control of FPA or its suppliers. Any schedule will be extended by a reasonable period to take into account such delays.
q. Service Exclusions: Services exclude:
i. Supply or service of items which are not listed in an FPA invoice or Schedule;
ii. Service for items that are not at the manufacturers minimum hardware and software version and/or configuration;
iii. Upgrades, modifications or refurbishment;
iv. Supply of new versions or releases of software and any configuration, integration or data migration required to use the same;
v. Supply and installation of consumables (including user replaceable items);
vi. Repairs or rework required due to:
a) misuse or abuse
b) damage or errors caused by fire, smoke, heat, water, flood, storm, lightning, brownouts, electrical failure and any other act of God,
c) repairs or modifications other than by FPA;
d) use other than as per manufacturer’s instructions and recommended operating environment;
e) moves by any person (other than FPA) who has not complied with manufacturer’s instructions
f) use in excess of rated life or Products which become unserviceable;
g) manufacturer recalls including product or parts replacement or substitution;
vii. Inability or refusal of the manufacturer to provide services or spares, including under any warranty that is assigned to FPA. Where the above exclusions apply, FPA may offer to continue to provide service on a chargeable time and materials basis.
r. Title and Risk: Risk passes on delivery of the Products. Title is retained by FPA and passes to you when FPA receives payment in full for each Product and until then, Customer holds Products and any proceeds of sale as trustee for FPA. For parts provided under Services, title in the exchanged parts will pass and vest upon exchange.
s. Intellectual Property Rights (IPR). All IPR existing, created or developed during the course of a SOW shall remain with FPA or its
licensor. Upon payment in full of the relevant SOW, FPA grants you a non-exclusive, non- transferable license to use FPA owned IPR that
has been incorporated in any deliverables for your internal business purposes only. You retain all IPR in any data or other materials you
may provide to FPA. Certain deliverables may require the Customer to obtain additional third party software to make use of the same.
t. Third Party Products, Software and Services: Third Party Products and Services are resold by FPA as non- returnable, sold "as is" subject to manufacturer’s specifications and warranty is return to base. All software is licensed and subject to the original licensor terms and conditions generally supplied with the software or available on request. Any intellectual property indemnity, support and warranty is only as offered by the manufacturer.
u. Change Control: The parties agree to follow a documented change control process to ensure that all changes are requested and performed in a controlled and audited manner. The party requesting the change will provide detailed requirements and specifications to allow the responding party to properly access and quote on the change. lf the change is within scope and is a minor variation, the responding party will perform the analysis at no additional charge. If the change is a major variation or out of scope, the responding party may provide an indicative order of magnitude and estimate the additional costs of preparing a formal quote, and if requested to proceed with a formal quote, the costs are payable by the requesting party regardless of whether the actual change proceeds or not. All quotes are valid for 14 days.
v. Confidentiality. Each party agrees to keep confidential information which is marked or by its nature confidential and shall protect, not disclose or use such for its own benefit except as permitted by a SOW.
w. Publicity. The parties agree to co-operation and reasonably consent to the other party using their name, relationship and details of any project or services for reasonable promotional purposes.
x. Assignment. FPA may assign this Agreement and any SOW to any related party.
y. Poaching. For the term of each SOW plus 12 months, neither party will directly or indirectly employ or engage as an employee or contractor nor solicit the employment of each others' employees or contractors, that are or were connected with or have come into contact with the other as a result of the SOW, unless the others party‘s prior written approval is obtained. This clause will not apply where an employee responds independently to publicly advertised employment opportunities.
z. Export Laws: Products, including technical information, software and services of United States origin may be subject to US and Australian export and re-export control laws and Customer agrees to comply with these in the use and re—export of the same.
aa. Governing Law. These terms are to be construed subject to the laws and courts of Victoria. If any provisions are held invalid, void, illegal or unenforceable, the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.