Archer College Services General Terms and Conditions

Terms and conditions governing provision of services

All services we provide are subject to the following terms and conditions.

1 Definitions and Interpretation

Unless the context otherwise requires the following words have the following meaning:-

1.1 “Payment Schedule” means the required timing of Service Fee payments set out in the Proposal;

1.2 “Proposal” means the proposal provided by us to you (including all attachments) and includes any written variations to that proposal agreed to by us;

1.3 “Services” means the services set out in the Proposal and any other services which we agree to provide;

1.4 “Service Fees” means the fees set out in the Proposal;

1.5 “Services Program” means the program (if any) set out in the Proposal for delivery of the Services; and

1.6 “Your Responsibilities” means your responsibilities as specified in the Proposal and your prompt provision of any other information or assistance reasonably requested by us during the course of the project.

2 Provision of Services

2.1 We will provide the Services to you in accordance with the Services Program.

2.2 The Services may be provided by us or by a suitable contractor appointed by us.

2.3 The Services will be provided in accordance with sound and accepted professional practice existing at the date of your acceptance of the Proposal.

2.4 We will endeavour to provide the Services without unreasonable delay but we will not be liable for any failure or delay in the provision of the Services which is caused or contributed to by you or your contractors or an event outside our direct reasonable control.

2.5 Our provision of the Services is subject to you:

2.5.1 Complying with Your Responsibilities as and when required by us; and

2.5.2 Paying Service Fees to us in accordance with the Payment Schedule.

3 Payment for Services

3.1 You must pay us the Service Fees in accordance with the provisions of the Payment Schedule.

3.2 Subject to clause 3.3, payment of Service Fees must not be refused or delayed, notwithstanding any dispute between you and us.

3.3 If a genuine dispute arises regarding the amount of a Service Fee, you may suspend payment of the disputed amount pending resolution of the dispute but you must pay all other amounts in accordance with the Payment Schedule.

3.4 If you fail to pay any amount to us by the due date, you must pay interest on the amount due calculated from the due date until the date of payment at a rate which is two per cent higher than the rate which is or would be charged by our bank on an overdraft facility of $100,000.

4 Variation of Services to be provided

4.1 If we suggest or if you request a variation of the Services to be provided pursuant to the Proposal including (without limitation) the provision by us of additional services, we will provide you with a written proposal specifying the cost and other terms upon which we would be prepared to agree to that variation.

4.2 Neither you nor we are obliged to agree to any variation, but you and we agree to review and discuss any variation proposal in good faith.

5 Intellectual Property Rights & Confidentiality

5.1 We retain all copyright and other intellectual property rights in our know how and the materials we apply or produce in delivering the Services including any deliverables and we retain or obtain all intellectual property rights with respect to any copies, reproductions, adaptations, additions to, enhancements, alterations, modifications or translations made of that know how or those materials.

5.2 We warrant that our provision of the Services will not infringe the intellectual property rights of any third party and we agree to indemnify you against any liability you may reasonably sustain if our provision of the Services infringes the intellectual property rights of any third party. If any aspect of the Services infringes a third party’s intellectual property rights, we will either arrange a non-infringing work-around, obtain a licence at our cost permitting your use of the relevant Services or suspend the availability of such Services.

5.3 You (or third party owners) retain all copyright and other intellectual property rights in any content you provide or cause to be provided to us in connection with the performance of the Services.

5.4 You warrant that our use of any content or other material you provide or cause to be provided to us in connection with the performance of the Services will not infringe the intellectual property rights of any third party and you agree to indemnify us against any liability we may reasonably sustain if our use of that content infringes the intellectual property rights of any third party.

5.5 You will give us notice of any infringement of our copyright or any other right of ours that comes to your attention and we will give you notice of any infringement of your copyright or any other right of yours that comes to our attention

5.6 You must treat as confidential all information (other than information in the public domain) which we provide to you including (without limitation) information relating to our software and systems, our pricing and our business operations. You agree not to disclose such information to any other party without our prior written permission. You may only use such information and may only disclose this information to your employees to the extent necessary to give effect to the objectives identified in the Proposal.

5.7 We must treat as confidential all information (other than information in the public domain) which you provide to us including (without limitation) information relating to your business operations. We agree not to disclose such information to any other party without your prior written permission. We may only use such information and may only disclose this information to the extent necessary to enable us to perform our obligations in accordance with the Proposal.

5.8 Upon termination, each of us must return to the other party all copies of confidential information received from that party.

5.9 The confidentiality obligations shall survive and continue to binding upon you and us, notwithstanding termination.

6 Warranties & liability

6.1 Apart from the express warranties contained in these terms and conditions and subject to any warranties implied by law which cannot be excluded by agreement, all warranties with respect to the Services are hereby expressly excluded. We accept no liability for the provision of the Services, whether arising by reference to the provisions of the Proposal, implied terms, tort or otherwise howsoever. If circumstances arise where you are entitled to claim damages from us notwithstanding the provisions of these terms and conditions, our liability to you for the aggregate of all such claims (regardless of the basis on which you are entitled to claim from us including, without limitation, negligence) is limited to the lesser of:

6.1.1 the amount of any actual loss or damage which you sustain;

6.1.2 the Service Fees received by us.

6.2 You acknowledge that you have relied upon your own skill and judgement in determining the appropriateness of the Services for your own particular purposes and you have not relied on any statement or representation made by us or on our behalf.

6.3 If any warranty or condition is implied by the Trade Practices Act or other relevant legislation which may not be excluded then our liability for any breach of such an implied warranty is limited solely to the resupply of the relevant Service or payment to you of the cost of having the Service provided again (at our option).

6.4 In no event will we be liable for any consequential damages (including without limitation loss of or damage to data, loss of profits, loss of savings and loss of revenue) even if we have been advised of the possibility of such damages.

7 Default

7.1 If a party (the “Defaulting Party”) commits any default with respect to the due observance or performance of any of its obligations under these terms and conditions, then the other party (the “Innocent Party”) may, without prejudice to any other rights the Innocent Party may have, give written notice to the Defaulting Party identifying the default and requiring that the default be remedied (a “Default Notice”).

7.2 If the Defaulting Party fails to remedy a default within 14 days after receipt of a Default Notice or, where the default is not capable of being remedied within 14 days and the Defaulting Party fails within that period to commence to remedy the default or fails to diligently proceed to remedy the default, then the Innocent Party may terminate the arrangements between you and us by written notice to the Defaulting Party.

7.3 A party may terminate the agreement by written notice if it reasonably considers that the other party is or is likely to become insolvent.

8 Additional terms

8.1 You agree not to assign or transfer or otherwise deal in any way with any rights we grant or obligations you undertake without our express written permission, which permission may be granted or granted subject to conditions or refused in our absolute discretion.

8.2 Neither party shall, without the prior written consent of the other party, employ or enter into contractual arrangements with, offer employment or contractual arrangements to, or solicit requests for employment or contracts from, any current or former employee or contractor of the other party for a period commencing on the acceptance of the Proposal and ending 12 months after termination of all contractual arrangements between you and us.

8.3 No right will be waived by a party except by express written notice signed by that party.

8.4 If any provision of these terms and conditions is found to be invalid, unenforceable or illegal, then that provision will be deemed to be deleted to the extent necessary to remove the invalid, unenforceable or illegal portion and the balance of these terms and conditions will remain binding.

8.5 If any dispute arises between you and us which can not be resolved by negotiation, you and we will confer and seek to agree the most appropriate mechanism for resolution of the dispute before commencing any proceedings, provided that this provision will not apply where you or we reasonably conclude that injunctive or other urgent proceedings are necessary to protect its position.

8.6 Notices or other formal communications may be given by hand delivery, by mail or by email or facsimile transmission and will be deemed to be received:

8.6.1 in the case of hand delivery, upon delivery;

8.6.2 in the case of mail, three (3) business days after the date of posting the article; or

8.6.3 in the case of email or facsimile, upon completion of transmission (except where transmission is completed after 5:00 pm on a business day, in which case receipt is deemed to occur at 9:00 am on the next business day).

8.7 The Proposal (as varied in writing) is the complete and exclusive statement of the agreement between you and us and it supersedes all proposals or prior agreements, oral or written, and all other communications relating to the subject matter of the Proposal.

8.8 The parties are independent contractors and are not in a partnership or joint venture relationship. Neither you nor we may purport to act on behalf of the other party unless expressly authorised to do so in writing.

8.9 If any provision of these terms is unlawful, void or for any reason unenforceable, then that provision shall be deemed severed from these terms and shall not affect the validity and enforceability of any remaining provisions.

8.10 The arrangements between you and us are made in accordance with, and are subject to, the laws of New South Wales. You and we irrevocably agree that all legal proceedings arising in connection with these arrangements must be prosecuted in the Courts of New South Wales.
Any person accepting the Proposal on your behalf warrants that they are authorisedto do so.