Diverse Surveyors

Terms & Conditions of Trade

1. Entire Agreement

(a) These terms and conditions, together with any Credit Application, Credit Agreement, Guarantor Terms, each Order whether accepted or not create the terms and conditions of this Agreement between Diverse and the Customer.

(b) The provision or acceptance of an Order will not form a separate agreement and any additional terms contained in any document (including hand amendments) provided by the Customer will not form part of this Agreement, unless agreed to in writing by Diverse.

(c) This Agreement applies to all Goods and Work that Diverse provides to or which are accepted by a Customer (or its authorised representative). The Customer is deemed to have read, understood and accepted these terms and conditions if at any time the Customer requests or accepts an Quote or Order or pays any deposit or any other monies in relation to a Quote or Order.

2. Definitions and Interpretation

2.1 Definitions

The following definitions apply in this Agreement.

Agreement means the legally binding agreement comprising of these terms and conditions, any associated terms and any Order.

Business Days means a day (other than a Saturday, Sunday or public holiday) on which banks are open for general banking business in Brisbane.

Change of Control means for a company, a change in:

(a) control of the composition of the board of directors of the company;

(b) control of more than half the voting rights attaching to shares in the company; or

Claim means a claim, demand, remedy, suit, injury, damage, loss, cost, liability, action, proceeding, right of action, claim for compensation or reimbursement or liability incurred by or to be made or recovered by or against a person, however arising and whether:

Collateral takes its meaning from section 10 of the PPS Act.

Communication means any written communication (including each notice, consent, approval, request and demand) under or in connection with this Agreement.

Confidential Information means information that is by its nature confidential, including but not limited to information relating to the:

(a) the Customer or the Customer's clientele;

(b) personnel, policies, practices, clientele or business strategies of Diverse; and

(d) terms of this Agreement,

(e) but does not include information:

(i) already rightfully known to the receiving party at the time of disclosure by the other party; or

(ii) in the public domain other than as a result of disclosure by a party in breach of its obligations of confidentiality under this Agreement.

Consequential Loss means loss of revenue, loss of profits, loss of anticipated savings or business, pure economic loss, loss of data, loss of value of Goods (other than the cost of repair), loss of opportunity or expectation loss, and any other form of consequential, special, indirect, punitive or exemplary loss or damages.

Consumer Law means the Australian Consumer Law set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth).

Credit Account means an account with us in which we allow you to accrue debt to us for Work rendered under this Agreement without the need for immediate payment of those debts.

Credit Agreement means a contract or form which details specific terms for a Credit Account and falls under the terms of this Agreement, generally by way of a credit application form.

Credit Application means an application by the Customer for Diverse to issue them with credit.

Creditworthiness means the valuation process performed by Diverse to determine the likelihood of the Customer defaulting on its debt obligations:

(a) ascertained or unascertained;

(b) immediate, future or contingent; and

Customer, you or your means the individual or company listed on a Quote, Order or Credit Application with us as the other party (and all of the Customer’s associated/authorised representatives).

Default Rates means the rate set out in the Order for personnel who provide the Work, or as Diverse otherwise publishes (for example, on its Website) from time to time.

Diverse, us, our, we means Diverse Surveyors Pty Ltd.

Goods mean any items supplied to the Customer by Diverse pursuant to the Order, but excludes any goods produced or provided by a Preferred Supplier.

Guarantor Terms means a guarantor agreement signed by the Customer, or a director or Representative of the Customer, usually in connection with a Credit Application.

Insolvency Event means in respect of a party (the Insolvent), the appointment of an administrator, a receiver or receiver and manager in respect of the Insolvent, an application to a court or an order for the winding up of the Insolvent, or where anything analogous or having a substantially similar effect to any of the preceding events occurs.

Intellectual Property means all intellectual property rights, including copyright, inventions, patents (including patent applications), trade marks (whether registered or not), designs (whether registrable or not), eligible circuit layout rights, domain names, licences, know-how, trade secrets, and includes the right to register any intellectual property rights.

Liability means any liability (whether actual or prospective), loss, damage, cost or expense of any description, including legal fees on a solicitor and own client basis.

Location means the geographical location where the Goods are to be delivered or any location at which the Goods are stored, installed or kept by the Customer after delivery.

Order means the agreed statement of work which sets out the Goods to be acquired, quantity levels, prices, installation process, delivery dates and Payment Terms.

Out-of-Scope Services means Work not specified in an Order which the Customer requires performed.

Payment Terms means the terms and conditions in relation to the amount payable in respect of an Order provided by Diverse to the Customer, including all costs, charges and expenses reasonably and properly incurred by Diverse.

PPS Act means the Personal Property Securities Act 2009 (Cth).

PPSR means the Personal Property Securities Register established under the PPS Act.

Privacy Law means:

(a) the Privacy Act 1988 (Cth); and

(b) any other law that governs the use, disclosure or management of data or information relating to persons.

Purchase Money Security Interest has the meaning defined under the PPS Act.

Quote means the estimated price provided by Diverse to the Customer in relation to a statement of work concerning the Goods to be acquired, quantity levels, proposed delivery dates and Payment Terms.

Representative includes an employee, agent, officer, director, auditor, advisor, researcher, partner, consultant, contractor, sub-contractor or related entity of that person or of a related body corporate of that person.

Security Interest has the meaning defined under the PPS Act.

Website means the website located at www.diversesurveyors.com.au

Work means any services performed by Diverse which involves the Goods.

2.2 Interpretation

Headings are for convenience only, and do not affect interpretation. The following rules also apply in interpreting this Agreement, except where the context makes it clear that a rule is not intended to apply.

(a) A reference to:

(i) (legislation) legislation (including subordinate legislation) is to that legislation as amended, re-enacted or replaced, and includes any subordinate legislation issued under it;

(ii) (parties) a party to this Agreement or to any other document or agreement includes a permitted substitute or a permitted assign of that party;

(iii) (person) a person includes any type of entity or body of persons, whether or not it is incorporated or has a separate legal identity, and any executor, administrator or successor in law of the person; and

(iv) (parts of things) anything (including a right, obligation or concept) includes each part of it.

(b) (number) A singular word includes the plural, and vice versa.

(d) (parts of speech) If a word or phrase is defined, any other grammatical form of that word or phrase has a corresponding meaning.

(e) (examples) If an example is given of anything (including a right, obligation or concept), such as by saying it includes something else, the example does not limit the scope of that thing.

(f) (this Agreement) A reference to this Agreement includes the agreement recorded by this Agreement and by any document incorporated in this document by attachment or by reference.

(g) A reference to dollars or $ is to an amount in Australian currency.

(h) A reference to information is to information of any kind in any form or medium, whether formal or informal, written or unwritten, for example, computer software or programs, concepts, data, drawings, ideas, knowledge, procedures, source codes or object codes, technology or trade secrets.

(i) A reference to a representative of Diverse is to an employee, officer, agent or subcontractor of Diverse.

2.3 Multiple Parties

If a party to this Agreement is made up of more than one person, or a term is used in this Agreement to refer to more than one party:

(i) an obligation of those persons is joint and several;

(ii) a right of those persons is held by each of them severally; and

(iii) any other reference to that party or term is a reference to each of those persons separately, so that (for example) a representation, warranty or undertaking is given by each of them separately.

3. Quotation and Orders

3.1 Quotes

(a) A Quote or indication of a price issued by Diverse is an invitation to treat, not a contractual offer.

(b) A Quote is valid for 30 days from the date of issue by Diverse.

(d) Accepted Quotes will be considered Orders following acceptance by the Customer in writing.

(e) An Order may only be cancelled in accordance with the terms of this Agreement.

3.2 Suitability

(a) Diverse makes no representation or warranty as to the suitability of the Goods for the Customer’s purposes. It is the Customer’s responsibility to satisfy itself as to such suitability.

4. Goods at Customer’s Location

4.1 Goods Generally

(a) This clause applies where the Customer acquires Goods from Diverse or there is otherwise Goods at a Location and the Customer has not paid in full for the Goods.

(b) The Customer acknowledges that as between the Customer and Diverse, Diverse owns the Goods, and the Customer holds it as bailee only. Diverse retrains title to all unsold Goods, even if the Customer goes into liquidation or becomes bankrupt prior to paying in full.

(c) Except as agreed in writing by Diverse, the Customer may not assign, sub-let, charge, mortgage, pledge or create any form of Security Interest over, or otherwise deal with the Goods in any way.

4.2 Obligations

The Customer must:

(a) not in any way alter, modify, tamper with, damage or repair the Goods without Diverse's prior written consent; and

(b) not deface, remove, vary or erase any identifying marks, plate, number, notices or safety information, on the Goods;

5. Supply of Work and Goods

5.1 Services

Diverse will provide the Work subject to this Agreement.

5.2 Performance

Diverse will endeavour to provide the Work within the timeframes set out in an Order (if they exist).

5.3 Service limitations

Diverse will use reasonable efforts in providing the Work, however other than as set out in this Agreement, to the fullest extent permitted at law, Diverse does not warrant or guarantee the Work will be uninterrupted or error free, and Diverse doesn’t take any responsibility for faults, delays, or interruptions to the Work caused by

(a) misuse or error;

(b) Customer staff or equipment;

(d) any Unforeseen Event.

5.4 Out-of-Scope Services

Diverse may at its discretion, upon request by the Customer, provide Out-of-Scope Services. Unless stated elsewhere, Diverse will charge the Default Rate for any Out-of-Scope Services it provides.

5.5 Right to sub-contract.

The Customer acknowledges that Diverse may use sub-contractors to deliver the Goods and agrees to continually indemnify and hold harmless Diverse and its Representatives, from any loss suffered or incurred caused by the sub-contractor.

5.6 Material may not be available

The Customer acknowledges that the Goods advertised by Diverse whether in print or on the Website may be derived from products provided by third party supplier. Some material may not be available to Diverse at the time the Customer accepts a Quote, which may result in a delay in the Work.

5.7 Instructions, equipment and materials.

The Customer must:

(a) give Diverse clear instructions regarding the scope and specifications of the Work and respond to any questions Diverse has promptly and clearly;

(b) provide any material or documents necessary for Diverse to perform the Work; and

(c) respond in a timely manner if we bring an issue to your attention in relation to your software, equipment, data or network that affects the Work.

5.8 Warranties

The Customer guarantees (and continue to guarantees) that it and its representatives have all necessary licences and legal right(s) to allow Diverse to provide the Work, and that providing the Work based on the Customer’s directions won’t contravene applicable laws.

6. Referred Work or Goods

6.1 Referral to Third Party Providers

(a) As part of performing the Work, Diverse may refer the Customer to third party suppliers who can perform work or supply goods directly to the Customer (Preferred Supplier).

(b) Where the Customer engages a Preferred Supplier to perform work or supply goods, it acknowledges and agrees:

(i) Diverse's involvement is as referrer only, and unless expressly agreed otherwise in writing, Diverse will provide no other services to the Customer;

(ii) Diverse makes no guarantees or warranties in respect of the services, work or goods supplied by the Preferred Supplier;

(iii) even where Diverse is involved further in relation to work or goods provided by the Preferred Supplier, the Preferred Supplier shall remain responsible for all work or goods is provides; and

(iv) where you have a Claim in relation to the actions, work or goods of the Preferred Supplier under an engagement with them, your sole and exclusive warranty is to pursue the Preferred Supplier.

6.2 Release and Indemnity

Where the Customer interacts with, engages or otherwise has dealings with a Preferred Supplier, it expressly releases, indemnifies and warrants that it will hold entirely harmless Diverse from any Claim, liability, damages or actions resulting from the Customer’s dealings with the Preferred Supplier

7. Delivery

7.1 What will be delivered and when

Diverse will supply the Goods to the Customer as stipulated in an Order.

7.2 Delivery

Where the Order includes delivery:

(a) Diverse will use its best endeavours to deliver Goods to the Location as set out in the Order or at the time agreed between the parties.

(b) Diverse reserves the right to deliver the Goods in multiple deliveries.

7.3 Diverse's delay in delivery

(a) Diverse will notify the Customer at the earliest practicable date if it believes that the delivery of Goods will be delayed.

(b) Diverse will advise the Customer of the new delivery date.

7.4 The Customer’s delay or prevention of delivery

If Diverse is unable to deliver the Goods because of an act or omission of the Customer including a failure of the Customer to fulfil its obligations under this Agreement:

(a) the risk in the Goods will pass to the Customer;

(b) the Goods will be deemed to have been delivered;

(d) Diverse may store the Goods until actual delivery is possible and the Customer will be liable for all related costs and expenses.

8. Goods

8.1 Fault in Goods

(a) Subject to clause 13, if the Customer, acting reasonably, finds the Goods to be faulty, Diverse agrees to rectify it within a reasonable time at its own expense.

(b) Small deviations from the Goods description will not entitle the Customer to reject the Goods.

(c) However, if any such fault is caused by the Customer’s direction to change the Goods, the rectification shall be at the Customer’s expense.

(d) Nothing in this clause affects the Customer’s rights for any alleged failure of a guarantee under Consumer Law.

8.2 Installing the Goods

(a) Where Diverse is required to perform Work at the Customer’s Location, the Customer agrees to provide Diverse with access to the Location, equipment and other facilities and services as are reasonably required to perform the Work.

(b) While at the Customer’s Location, Diverse and its Representatives will:

(i) comply with the Location’s security and site regulations;

(ii) observe all occupation health and safety requirements; and

(iii) perform the Work in accordance with any relevant safety standards which it observes.

9. Calculation of fees for the Work or Goods

9.1 Payment

(a) Diverse will invoice the Customer and Customer will pay the amount due on the invoice in accordance with the Payment Terms as set out in an Order.

(b) Diverse is at liberty to provide more than one invoice for any given Quote or Order where there is a logical division of the Goods or Work performed.

9.2 Usual Payment Terms

(a) For all standard Orders and unless otherwise stipulated, we will invoice you as follows:

(i) Upon delivery of goods or service

(ii) 2 weeks from invoice issued date

(b) We will not commence Work unless we receive payment of the Deposit, and you acknowledge and agree that we can refuse to undertake the Work until we receive clear payment.

9.3 Cancellation Fees

Where you have accepted a quote and paid the Deposit and inform us that you wish to cancel the Work afterwards, we reserve the right, at our absolute discretion and without any liability to you, to:

(a) keep some or all of the Deposit as compensation for our time and material expenditure to that juncture; and

(b) to invoice you for any expenses incurred by us for the 72 hour period following the cancellation, including (but not limited to) wages, equipment hire and licenses.

9.4 GST

The Customer is responsible for paying all government charges or duties of any kind incurred in or in connection with Diverse's provision of credit, or supply of Goods. Such charges include without limitation all stamp duties, GST, financial institution duties, and any other charges or duties of a like kind.

9.5 Failure to pay

If the Customer fails to pay Diverse any amount under this Agreement by the due date for payment, Diverse may immediately do any or all of the following, without any liability, until all overdue fees are paid:

(a) charge the Customer interest on the overdue amount at 5% above the Reserve Bank of Australia cash rate;

(b) terminate this Agreement without any obligation to refund the Customer any money in respect of the cancellation, even if the contractual term of this Agreement has not expired;

(c) initiate proceedings against the Customer to recover the overdue amount (despite any dispute resolution clause in this Agreement); and

(d) recover all costs in relation to any action taken against the Customer to recover overdue amounts, including but not limited to legal costs and outlays on a full indemnity basis.

10. Security Interest

10.1 Security Interest

(a) In contemplation of the risk involved in providing you a Credit Account or other Work, we may require that you offer up Collateral for us to secure an interest over.

(b) You acknowledge that, where we do require Collateral, this Agreement will be considered a Security Agreement for the purposes of the PPS Act and irrevocably consent to us registering our Security Interest on the PPSR.

(c) In order to secure the Customer’s obligations under this Agreement, including any obligation to pay any amount to Diverse (including in relation to a Credit Account), the Customer:

(i) grants to Diverse a Security Interest in respect of all goods sold, supplied, leased, bailed or otherwise provided or made available to the Customer by Diverse and any proceeds thereof;

(ii) consents to Diverse perfecting such Security Interest by registration on the PPSR, including as a Purchase Money Security Interest; and

(iii) undertakes to Diverse to do all things reasonably necessary or required by Diverse to assist Diverse in perfecting the registration of the Security Interest on the PPSR; and

(iv) waives, to the extent permitted by the PPS Act, its right to receive any notice of a verification statement or any other notice Diverse would otherwise be required to give under the PPS Act.

10.2 Dealing with Secured Collateral

In relation to any Collateral for which we have a Security Interest under this agreement, you agree and warrant that you:

(a) have full right and title in any Collateral;

(b) will disclose any and all encumbrances over Collateral as soon as possible;

(d) will not sell, dispose of, grant a license or lease, give control to another, part with possession, allow the value to be reduced, commingle, or deal with the Collateral in any way which could be harmful to our interests in the Collateral without our express permission.

10.3 Enforcement

If Chapter 4 of the PPS Act would otherwise apply to the enforcement of this Agreement, you agree that the following provisions of the PPS Act will not apply to the enforcement of this Agreement:

(a) section 95 (notice of removal of accession), to the extent that it requires us to give a notice to you;

(b) subsection 121(4) (enforcement of liquid assets — notice to grantor);

(d) paragraph 132(3)(d) (contents of statement of account after disposal);

(e) subsection 132(4) (statement of account if no disposal);

(f) section 135 (notice of retention);

(g) section 142 (redemption of collateral); and

(h) section 143 (reinstatement of security agreement).

11. Account and Credit

11.1 Ability to Pay

(a) In performing Work and providing Goods under this Agreement, we may provide you with access to a Credit Account. In order to provide you with access to a Credit Account, you must:

(i) complete the Credit Account request form attached to the initial Quote;

(ii) provide us with any evidence we request which may demonstrate that you are able to satisfy your payment obligations to us at all times; and

(iii) comply with the terms listed on that request form and this clause 11.

(b) Prior to providing you access to a Credit Account, and for the term of this Agreement, we reserve the right to:

(i) check your credit history with institutions of our choosing;

(ii) enquire with you about confidential business matters such as cash flow, expenses and projected revenue; and

(iii) take all other actions we deem reasonably necessary to satisfy ourselves that you will discharge your payment obligations under this Agreement.

(c) We may refuse to execute, suspend or terminate this Agreement at our complete discretion where you fail to comply with our requests under clause

11.2 Credit Agreement

(a) You may obtain Work and Goods under this Agreement up to the amount of your credit limit. The credit limit is stipulated in your Credit Agreement. If you do not have a Credit Agreement, you shall not be afforded any of the benefits of a Credit Account and must pay all invoices if and when they fall due.

(b) You must comply with all terms, payment periods and requirements of any Credit Agreement you enter into with us for a Credit Account.

(c) We reserve the right to suspend the provision of Goods or Work on credit and may (in our discretion) suspend/terminate the Credit Agreement and/or Credit Account entirely if:

(i) you breach any term of this Agreement;

(ii) you breach any term of the Credit Agreement;

(iii) you do not make payments on your Credit Account within the period stipulated;

(iv) you exceed the credit limit.

(d) You expressly release and discharge us from any Liability to you for the suspension or termination of a Credit Account and/or Credit Agreement under clause 11.2(c).

(e) You acknowledge that the provision of a Credit Account is a privilege provided entirely at our discretion, and that you have no inherent or continuing right to such a privilege. You agree that we may revoke your Credit Account at any time without the need for prior notice to you.

(f) We may update, amend or vary any of the terms on which we provide you a Credit Account at our complete discretion. Your continued use of the Credit Account is considered acceptance of all terms and conditions which relate to the provision of that account.

(g) Where you do not agree with any updated terms and conditions as they relate to a Credit Account, your sole and exclusive remedy is to cease usage of the Credit Account altogether.

(h) You indemnify us for any failure to comply with the Credit Agreement and/or misuse of your Credit Account, including any legal costs, Consequential Loss or other damages which flow from that breach.

(i) You acknowledge and agree that we may charge interest and other fees on the Credit Account, fees for which will initially be set out in the relevant Credit Agreement. We may update these fees at any time, and will notify you of changes in relation to same within a commercially reasonable timeframe.

12. When a Customer is in default

12.1 When a Customer is in Default

The Customer will be in default if the Customer:

(a) fails to pay any amount on time;

(b) gives Diverse incorrect or misleading information in relation to the Credit Application;

(d) undergoes an Insolvency Event; or

(e) breaches any term of this Agreement, and fails to remedy that breach within 10 Business Days;

12.2 Rights

If the Customer is in default, then subject to any law (including requirements as to notice), Diverse will have the right to:

(a) demand immediate payment of all moneys owed by the Customer to Diverse whether due for payment or not;

(b) recover from the Customer all Goods it has supplied to the Customer whether paid for

or not;

(c) re-sell or otherwise dispose of the Goods so recovered without reference to the Customer and apply the net proceeds to the Customer’s debt to Diverse;

(d) immediately cancel any Agreement, including any Order in effect with the Customer without any obligation to refund the Customer any money in respect of the cancellation; and

(e) enforce any Security Interests against the Customer.

12.3 Recovery

In order to effect recovery of the Goods in accordance with this clause, the servants or agents of Diverse may:

(a) enter the Customer's Location (or any location under the control of the Customer or the Customer's agent if the Goods are stored at other locations); and

(b) use any reasonable force to effect recovery without liability for trespass or any resulting damage.

12.4 Diverse's set-off rights

(a) Diverse, after having demanded payment of any amount overdue in accordance with this clause 12, may apply any payment paid by the Customer, against:

(i) Diverse's costs and disbursements in recovering the amount due;

(ii) any interest accrued; or

(iii) the amount overdue.

(b) Diverse may at any time set off any amount the Customer owes to Diverse against any amount Diverse may then owe to the Customer.

13. Warranty

13.1 Warranty Period

(a) Diverse warrants that the Goods will be free from defects in materials and workmanship on the same terms and condition including the period of warranty as the warranties provided by the manufacturer of the Goods (Goods Warranty Period).

(b) Diverse warrants that the Work will be free from defects in material and workmanship for a period of 30 days from delivery (Work Warranty Period).

(c) Diverse reserves the right to inspect and test the product/s for the purpose of determining the extent of any defect and the validity of any claim made under this warranty. All defective parts/products replaced by Diverse under this warranty will be deemed to be the property of Diverse.

(d) This warranty will not apply if the Goods are rendered faulty by a factor other than a defect in materials and workmanship. Such factors include but are not limited to:

(i) damage through misuse (including failure to maintain, service or use with proper care), neglect, accident or ordinary wear and tear (including deterioration of parts and accessories); and

(ii) use for a purpose for which the Goods was not sold or designed.

(e) We do not provide warranties for goods or work supplied by a Preferred Supplier unless expressly agreed in writing. All warranties for Preferred Supplier goods are the responsibility of the Preferred Supplier.

13.2 Unsafe

(a) If, for a reason not caused by the Customer, Goods becomes unsafe to use during the Goods Warranty Period, the Customer must:

(i) immediately stop using the Goods and notify Diverse;

(ii) take all steps necessary to prevent injury occurring to persons or property as a result of the condition of the Goods;

(iii) take all steps necessary to prevent any further damage to the Goods itself; and

(iv) not repair or attempt to repair the Goods without Diverse's written consent.

(b) Upon receiving notice of such a safety issue, Diverse will take reasonable steps to repair or replace the Goods as soon as reasonably possible.

13.3 Making a warranty claim

To make a warranty claim, the Customer should contact Diverse using the following email dericson@diversesurveyors.com.au

14. Liability

14.1 Consumer Law

(a) The Customer acknowledges and agrees that it is acquiring the Goods and otherwise entering into and acquiring goods under this Agreement for commercial purposes and not for domestic, personal or household use.

(b) If the Customer is a consumer within the meaning of the Consumer Law, there are certain rights (such as the consumer guarantees implied by the Consumer Law), which cannot by law be excluded (Non-Excludable Condition). This clause is subject to those Non-Excludable Conditions.

14.2 Exclusion and Warranty

Subject to the application of any applicable Non-Excludable Condition and to the maximum extent permitted by law, Diverse:

(a) excludes from this Agreement all guarantees, conditions and warranties that might but for this clause be implied into this Agreement;

(b) exclude all liability to the Customer for any costs, expenses, losses and damages suffered or incurred directly or indirectly by the Customer in connection with this agreement, whether that liability arises in contract, tort or under statute; and

(c) will not, under any circumstances, be liable to you for any consequential loss; and the Customer warrants to Diverse, as a condition of engaging Diverse to perform Work or Goods under any Order, that it acknowledges, understands and agrees to the above terms.

14.3 Limitation

If Diverse's liability under this Agreement cannot be lawfully excluded, to the maximum extent permitted by law, Diverse's liability for breach of any Non-Excludable Condition is limited:

(a) in the case of goods, to (at Diverse's option) the replacement of the goods or the supply of equivalent goods; the repair of the goods; the payment of the cost of replacing the goods or of acquiring equivalent goods; or the payment of the cost of having the goods repaired;

(b) in the case of services, to (at Diverse's option) the supplying of the services again; or the payment of the cost of having the services supplied again.

15. Indemnity

15.1 Customer Indemnity

The Customer indemnifies Diverse and Diverse's Representative against all liability arising from Claims for:

(a) any harm to, claim or action by a third party arising directly or indirectly from the Customer’s use of the Goods;

(b) any personal injury or death arising directly or indirectly out of the Customer’s conduct;

(d) any negligent or unlawful act or omission by the Customer in connection with the Goods;

(e) Diverse or a third party’s reliance on a misleading representation made by the Customer;

(f) a contract in force between the Customer and a third party connected with the Work or Goods;

(g) Diverse being obligated to correct data upon request by a person in accordance with Privacy Law;

(h) and failure to honour its warranties under this Agreement, including the warranties made in clause 14;

(i) any complaints process initiated by a person under Privacy Law; or

(j) any other cost incurred by the Diverse as a result of a person pursuing rights conferred upon them by Privacy Law.

15.2 Conditions of indemnity

(a) Diverse may make a claim under indemnities in this Agreement in relation to a cost before having incurred the cost, or before making a payment in relation to the cost.

(b) The indemnities in this Agreement shall be in addition to any damages for breach of contract to which Diverse may be entitled. Nothing in the indemnities in this Agreement will be construed so as to prevent Diverse from claiming damages in relation to the Customer’s breach of any term of this Agreement.

(c) Each indemnity in this Agreement is a continuing obligation, separate and independent from the other obligations of the parties and survives termination of this Agreement for whatever reason.

16. Intellectual Property

16.1 Intellectual Property Rights.

(a) Unless otherwise agreed, each party retains ownership of all Intellectual Property rights in material owned or created by that party independently of this Agreement. None of that Intellectual Property is assigned or transferred by way of this Agreement.

(b) The parties agree that all Intellectual Property rights in:

(i) the Work and any other material, Goods, methods or content developed by us under this Agreement; and

(ii) any improvements, modifications or enhancements to the Goods, and any other material developed by us in the course of providing the Work, (collectively, the Work IP) will vest in and are owned by us upon creation, even if based on your new feature request or user feedback.

(c) Without limiting your rights at law, and subject to any conflicting rights granted by this Agreement, you must not, without our written consent:

(iv) sell, sublicense, rent, lease, lend, modify, alter, translate, reproduce, transmit, distribute, publicly display, publicly perform, publish, adapt, or edit any part of the Work IP;

(v) combine or incorporate the Work IP in any aspect of your business without our consent in writing;

(vi) copy the Work IP, in whole or in part, except to incorporate the Work IP into hard or soft copy documents for training or internal communication purposes;

(vii) use the Work IP in any way which is not in accordance with thespecifications and this Agreement;

(viii) use the Work IP for any unlawful purpose; or

(ix) authorise any other party to do any of the acts listed above.

16.2 Third party material

We may use third party materials where needed to provide the Work. Use of third party materials may be subject to creative commons or open source licensing terms, or any third party licensing terms as notified by us to you.

17. Dispute Resolution

17.1 Dispute Resolution Process

(a) Subject to clause 17.1(f) any dispute which arises between the parties in connection with this agreement (dispute) must be dealt with in accordance with the requirements of this clause 17, before either party will be entitled to commence proceedings against the other party in respect of the dispute.

(b) The party claiming that a dispute has arisen (complainant) must give the other party a written notice setting out a detailed explanation of the nature of the dispute; and what action the complainant thinks will resolve the dispute (dispute notice).

(c) Within 10 Business Days of the dispute notice being received by the other party, a nominated senior executive of each party must meet in Brisbane, Queensland (unless otherwise agreed between the parties), act in good faith and use best endeavours to resolve the dispute at that meeting, or such subsequent meetings as may be reasonably required.

(d) If the dispute is not resolved pursuant to clause 17.1(c) within 30 days of the dispute notice being received by the other party, the parties agree to attend a privately held mediation with a mediator appointed by the nominated senior executive or both parties and in the absence of agreement within 7 days of disagreement by such mediator as appointed by the President, or person in like office of the Resolution Institute.

(e) If the dispute is not resolved within a further 30 days pursuant to clause 17.1(d) then either party may commence proceedings against the other party in respect of the dispute.

(f) Nothing in this clause 17 prevents a party from seeking urgent injective or similar relief from a court.

17.2 Dispute resolution not to apply to debts

The dispute resolution procedure set out in this clause 17 will not apply in any instance where Diverse seeks to enforce a debt in connection with this Agreement.

18. Termination by Diverse

18.1 Termination

Diverse may terminate this Agreement immediately by written notice to the Customer if the Customer:

(a) is in material breach of this Agreement;

(b) is in default for more than 20 days;

(d) convicted of a criminal act; or

(e) experiences a change in its Creditworthiness.

18.2 Termination not to affect obligation to pay

Termination of this Agreement shall not affect the Customer’s obligation to pay any outstanding amounts or other amounts in relation to Goods or the Work already performed.

19. General

19.1 Confidentiality

(a) A party will not, without the prior written approval of the other party, disclose the other party's Confidential Information.

(b) A party will not be in breach of this confidentiality clause in circumstances where it is legally compelled to disclose the other party's Confidential Information.

(c) Each party will take all reasonable steps to ensure that its employees and agents, and any sub-contractors engaged for the purposes of this Agreement, do not make public or disclose the other party's Confidential Information.

(d) Notwithstanding any other provision of this clause, a party may disclose the terms of this Agreement (other than confidential information of a technical nature) to its related companies, solicitors, auditors, insurers and accountants.

19.2 Communications

(a) Communications must be in writing.

(b) Either party may serve any communication on the other party by sending it to that party’s email address. A communication by email will be taken to have been received by the addressee at the earlier of the time stated in a read receipt sent by the recipient’s computer or when the message has been delivered to the email address of the addressee

(d) For the purposes of the Electronic Transactions Act 1999 (Cth) and the Electronic Transactions (Queensland) Act 2001 (Qld), the parties agree to send, receive and execute notices and documents electronically, and agree that any document signed electronically will be binding with the same effect as a physical signature.

19.3 Inconsistency with other documents

If this Agreement is inconsistent with any other document between the parties, this Agreement prevails to the extent of the inconsistency.

19.4 Counterparts

A document which requires signing between the parties may be executed in any number of counterparts including where they are exchanged by facsimile or by email containing that document as an unalterable attachment. All counterparts together will be taken to constitute one instrument.

19.5 Reliance

Neither party has entered into any agreement in reliance on or as a result of any representation, promise, statement, conduct or inducement by the other otherwise than as set out in this Agreement.

19.6 Relationship of parties

The relationship of the parties does not form a joint venture, partnership or agency, or create any form of employment relationship.

19.7 Severability

Any clause of this Agreement, which is invalid or unenforceable, is ineffective to the extent of the invalidity or unenforceability without affecting the remaining clauses of this Agreement.

19.8 No waiver except in writing

No part of this Agreement will be deemed waived and no breach excused unless such waiver or consent is provided expressly and in writing.

19.9 Governing law

The laws of Queensland govern this Agreement. Each of the parties hereby submits to the non-exclusive jurisdiction of courts with jurisdiction there.

19.10 Amendment

This Agreement may only be amended in writing by Diverse.

19.11 Assignment

(a) The Customer cannot assign, novate or otherwise transfer any of its rights or obligations under this Agreement without the prior written consent of Diverse.

(b) Diverse may assign, novate or otherwise transfer any of its rights or obligations under any contract arising from this Agreement to a third party without notice to, or the prior consent of the Customer, but if Diverse requires, the Customer will sign any documents to give effect to an assignment, novation or transfer by Diverse under this clause.

19.12 Unforeseen Event

(a) The obligations of the parties under this Agreement are suspended to the extent that an occurrences or conditions beyond its control, including but not limited to acts of terrorism, acts of God, war strikes, civil disorder, disasters or changes to government regulations (Unforeseen Event) affects them, as long as the Unforeseen Event continues. However, if an Unforeseen Event continues for more than 40 Business Days, Diverse may terminate this Agreement by notice in writing to the Customer of not less than 10 Business Days.

(b) The occurrence of an Unforeseen Event does not suspend the obligation of the Customer to pay any money under this Agreement.

(c) A party claiming an Unforeseen Event must use their best endeavours to remove, overcome or minimise the effects of that Unforeseen Event as quickly as possible.

Diverse Surveyors

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