Terms and Conditions

  1. Commercial
    1. Commercial documents are defined as either a proposal or a quotation.
    2. A Fixed Price client engagement refers to a fixed price based on a fixed scope as defined under this agreement.
    3. Work undertaken is based on Time & Materials, unless otherwise agreed.
    4. Ad-Hoc Work conducted outside of normal office hours will be calculated at the “Out of Hours” rate and requires client approval. Out of Hours rate is calculated at double time (2x) the standard contracted rate.
    5. Ad-hoc work conducted inside of normal business hours will be calculated at standard contracted rate.
    6. Standard working hours are: 8am-5pm Monday to Friday.
    7. Out of Hours Project engagements may be adopted by the client subject to the following conditions:
      1. Advanced notification and engineering resource availability.
      2. All activities undertaken will be charged at a minimum of 2 hours.
      3. An authorised client representative will be on site during any works undertaken.
    8. The client may elect to cancel Out of Hours engagements at any time prior to commencement. Notification within 24 hours of the planned work will incur a minimum charge of 2 hours.
    9. Any travel, accommodation and or related expenses require client approval and will be on- charged to the client at cost.
    10. Any variations to the commercial agreement will be managed through a formal Change Request (CR) process.
    11. All pricing is quoted in Australian Dollars ($AUD) unless otherwise agreed.
    12. Services, Hardware, Software, Licenses and Maintenance quotation prices provided are valid for 7 days from the date of issue.
    13. Payment terms are 7 days unless the contract is for an ongoing service then payment terms are paid in monthly instalments with the first instalment due upon execution of the agreement. Each payment thereafter shall be due the first day of each calendar month.
    14. Rates may be subject to CPI increases from the 1st of January each year. In the event of an increase, empower ICT will inform the relevant parties in writing 1 month prior to the increase being applied.
    15. empower ICT reserves the right to refuse or suspend service under any or all agreements in the event of non-payment by the client within thirty (30) days of the Invoice due date.
    16. empower ICT reserves the right to suspend or terminate any or all agreements if in its sole opinion, conditions at the service site pose a health or safety risk to any empower ICT representative.
    17. empower ICT shall be obligated to provide service only at the service site(s) defined in each contractual agreement.
    18. Should the client desire to relocate, add or remove locations, the client shall give appropriate notice to empower ICT of its intention, thirty (30) days in advance. empower ICT reserves the right to renegotiate service terms with respect to any relocation and/or addition of locations by the client. Such right includes the right to refuse service at the relocation and/or new site.
  2. Project Delivery
    1. Resources and start dates proposed are subject to change prior to receipt of an official order (Purchase Order or Signed commercial agreement).
    2. The timeline for any engagement is as agreed and assumes no delays. In the event that cancelation, delays, or postponement prior to the engagement start, caused by non-empower ICT parties, empower ICT may apply a charge and cannot guarantee project resource availability outside the agreed dates.
    3. empower ICT reserve the right to charge an administration fee should any works be cancelled, delayed, or postponed within 24 hours of the planned work. This administration fee will be charged at 10% of the value of the contract.
    4. If included, the empower IC Project Manager, will be responsible for the scope, delivery, resources, risks, and financial management of the engagement.
    5. Confirmation of deliverables will be assumed after 5 working days of notification of achievement.
    6. All documentation will be provided using empower ICT standard templates unless otherwise agreed.
    7. empower ICT warrants that engagements set forth in each commercial agreement will be performed in a timely, professional manner with suitably qualified personnel, in accordance with prevailing industry standards.
  3. Client Responsibility
    1. It is incumbent upon the client to designate a single point of contact for the administration of any or all individual commercial agreements.
    2. The client will ensure empower ICT personnel are sufficiently aware of its policies and procedures to the extent necessary as deemed to the satisfaction of the client.
    3. Security access levels available to empower ICT parties will be identified and advised to empower ICT by the client prior to the start of the engagement.
    4. The client is responsible for the quality and timely delivery of any or all client activities and deliverables.
    5. The client remains responsible for ensuring all non-empower ICT required parties attend meetings or workshops.
    6. The client will make available any relevant information in a timely manner as requested by empower ICT personnel and ensure that such information is complete and accurate.
    7. The client will provide a suitable work environment including phone and Internet access, and where necessary; access to a suitable desktop computer and relevant systems.
  4. Duration & Termination
    1. All commercial agreements are effective from the date as defined within each commercial agreement and shall be for an initial term of twenty-four (24) months.
    2. This Agreement shall renew automatically for a period of twelve (12) months unless empower ICT or the client terminates the agreement in accordance with the standard terms and conditions.
    3. Either party may terminate any or all commercial agreements by providing sixty (60) days written notice to the other party. In no event shall a party be entitled to any compensation as a result of the other party’s election to terminate any or all commercial agreements.
    4. Either party may terminate any or all commercial agreements immediately where the other party:
      1. commits a material breach of the standard terms and conditions of service or an Individual commercial agreement; and
      2. fails to remedy a material breach of the standard terms and conditions of service or an individual commercial agreement which is capable of remedy within 60 days of receipt of a written notice specifying such breach.
    5. On termination of any or all commercial agreements:
      1. the accrued rights and remedies of each party remain unaffected.
      2. empower ICT will deliver a Tax Invoice to the client in respect of any delivered goods that empower ICT has not invoiced the client at the date of termination of the relevant individual commercial agreement;
      3. empower ICT will deliver a Tax Invoice to the client in respect of any delivered services that empower ICT has not invoiced the client at the date of termination of the relevant individual commercial agreements;
      4. Each party shall at the other party’s option, either destroy or return to the other party any of its confidential information, including any copies thereof in its possession or control.
      5. In respect of a termination effected by empower ICT, parties are to discuss ownership of the intellectual property in any work product arising out of the performance of the services, and licensing for that work product.
  5. Liability
    1. empower ICT shall not be liable for any failure to provide any service or to perform any obligation under any commercial agreement where such inability is caused by force majeure.
    2. empower ICT shall have no liability if:
      1. the allegation of infringement is a result of a modification of the commercial agreement not performed or approved by empower ICT;
      2. the work product is not being used in accordance with the authorised documentation; and
    3. the allegation of infringement is a result of use of the work product with any non- empower ICT supplied or approved third party product.
  6. Intellectual Property, Confidentiality and Customer Data
    1. Each party shall retain all rights to data and materials owned prior to the engagement. If data or materials are used by a non-owning party in the execution of an engagement, such utilisation shall not transfer, or imply the transfer, of ownership of said data or materials to the non-owning party. Parties to discuss ownership of the intellectual property in any work product arising out of the performance of the services, and licensing for that work product.
    2. Confidential information belonging to each party must be kept confidential by each party and in the event of the confidential information shared between the parties. A recipient of confidential information may only use the confidential information of the discloser for the purposes of performing its obligations under any or all agreements.
    3. A recipient must: not disclose confidential information to any person except if permitted by the commercial agreement; and not permit or assist any person to make any unauthorised use of the confidential information.
    4. A recipient may disclose confidential information of the discloser to the recipient’s personnel on a “need to know basis”; or any other person with the discloser’s prior written consent. Before doing so, the recipient must ensure that those persons are aware of the confidential nature of the confidential information and are bound by confidentiality obligations consistent with the commercial agreement.
    5. A recipient may disclose confidential information of the discloser to the extent required by law or regulations or any stock exchange having authority. However, the recipient must provide the discloser reasonable notice of any proposed disclosure (if permitted by law) to enable the discloser to seek a protective order or other remedy to prevent or limit the disclosure. Each party acknowledges that any breach of this clause may result in damage to the other party for which monetary damages may not provide sufficient relief. Each party is entitled to enforce its rights under this clause by specific performance or other injunctive proceedings.
    6. Client data remains the property of the client at all times, empower ICT gains no right or interest of the client data. empower ICT must:
      1. not use client data for any purpose other than directly for the performance of its obligations under the commercial agreement;
      2. must ensure that empower ICT personnel do not, sell, commercially exploit, mine, analyse, let for hire, assign rights in or otherwise dispose of any client data;
      3. not make any client data available to a third party other than an approved subcontractor and then only as is necessary for the approved subcontractor to perform; and
      4. not remove or transfer client data to any non-client premises or systems without obtaining the prior approval of the client.
  7. Limitation of Liability
    1. Except for IP infringement claims, breaches of confidentiality, personal injury or death, loss/damage to property; fraud and willful misconduct caused by negligence or willful default of empower ICT, empower ICT’s liability to the client for any damages, loss or liability for any cause whatsoever, regardless of the form of action will be limited to the total amount of fees paid by the client under or in any way connected with the standard terms and conditions or any commercial agreement for the provision of the services;
      1. where the services under the applicable individual commercial agreements are provided within a 12-month period, the fees paid by the client to empower ICT under the applicable individual commercial agreement; and
      2. where the services under the applicable individual commercial agreement are provided on an annual basis or over a period greater than 12 months, the fees paid by the client to empower ICT under the applicable individual commercial agreement in a 12-month period.
    2. The laws of Western Australia (excluding its conflict of law provisions) shall govern all engagements. The parties agree that any action arising under or relating to any engagement shall lie within the exclusive jurisdiction of the Courts of Western Australia.
    3. Upon expiration or termination of any engagement, the rights and obligations of the parties which by their context, intent and meaning would reasonably be expected to survive the termination or expiry of the engagement or any part thereof will so survive.
    4. During the term of an engagement and for six (6) months thereafter each party agrees not to hire, or engage as an independent contractor, or directly or indirectly solicit, induct, hire or employ any employee or contractor of the other, or a former employee or contractor, who has performed services under an engagement with the client.
    5. Nothing shall preclude or limit empower ICT from providing consulting services and/or developing software or materials for itself or other clients, irrespective of the possible similarity thereof to materials which might be delivered to the client, including without limitation screen formats, structure, sequence and organisation.
  8. Terms and Definitions
    Term Definition
    Ad-Hoc Unplanned services supplied on-demand or as required and as directed by the client during the course of an engagement.
    Client / Customer A person or organisation commercially engaged with empower ICT for products and or services.
    Confidential
    Information     		The term “Confidential Information” means all business or technical information of discloser, whether it is received, accessed, or viewed by recipient in writing, visually, electronically, or orally. Confidential information shall include, without limitation, client data, technical information, marketing and business plans, databases, specifications, formulations, tooling, prototypes, sketches, models, drawings, specifications, procurement requirements, engineering information, samples, computer software (source and object codes), forecasts, identity of or details about actual or potential customers or projects, techniques, inventions, discoveries, know-how and trade secrets. “Confidential Information” also includes all such business or technical information of any third party that is in the possession of discloser.
    CPI The Consumer Price Index (CPI) is a measure that examines the weighted average of prices of consumer goods and services. CPI is calculated by taking price changes for each item in a predetermined group basket and averaging them.
    Fixed Price A Fixed Price client engagement refers to a fixed price based on a fixed scope as defined in the commercial document.
    Client Data All data and information relating to the client and its operations, facilities, clients, personnel, assets and programs in whatever form that information may exist and whether entered into, stored in, generated by or processed as part of an engagement and any other data relating to the engagement, including client confidential information.
    Commercial
    Agreement     		Any further agreement between empower ICT and the client in respect of a specific engagement which is subject to and forms part of the standard terms and conditions.
    IP (Intellectual
    Property)     		All industrial and intellectual property rights of any kind including but not limited to copyright (including rights in computer software), trade mark, service mark, design, patent, trade secret, semiconductor or circuit layout rights, trade, business, domain or company names, rights in confidential information, know how or other proprietary rights (whether or not any of these are registered and including any application for registration) and all rights or forms of protection of a similar nature or having equivalent or similar effect to any of these which may subsist anywhere in the world.
    Liability All losses, liabilities, fines, penalties, damages, claims and interest, and all related costs and expenses (including any or legal costs (on a full indemnity basis), and costs of investigation, litigation, settlement, judgment, appeal, interest and penalties) and including those which are prospective or contingent and those the amount of which for the time being is not ascertained or ascertainable.
    Services Services provided by empower ICT to the client.
    Tax Invoice A tax invoice that complies with A New Tax System (Goods and Services Tax) Act 1999 (Cth).
  9. Enquiries
    Direct Enquiries to:
    National Service Delivery Manager
    Empower ICT
    4/353 Cambridge Street Wembley WA 6014
    ABN: 806 351 32017
    Phone: +61 1300 850 210
    Email: admin@empowerICT.com.au
    Website: www.empowerICT.com.au

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