Client Terms
These Client Terms, together with any Client Form (defined in clause 1), set out the agreement (this ‘Agreement’) under the terms of which AirSeed Technologies Pty Ltd ABN 12 651 133 283 (AirSeed) provides Services (defined in clause 3) to the Client.
1 CLIENT FORM, THIS AGREEMENT
(a) These Client Terms will apply to all the Client’s dealings with AirSeed, including being incorporated in all agreements, quotations or orders under which AirSeed is to provide the Services to the Client (each a Client Form) together with any additional terms included in such Client Form (provided such additional terms are recorded in writing).
(b) The Client will be taken to have accepted this Agreement if the Client accepts a Client Form, or if the Client orders, accepts or pays for any Services provided by AirSeed after receiving or becoming aware of this Agreement or these Client Terms.
(c) In the event of any inconsistency between these Client Terms and any Client Form, the clauses of these Client Terms will prevail to the extent of such inconsistency, except that any “Special Conditions” (being terms described as such in a Client Form) will prevail over these Client Terms to the extent of any inconsistency.
(d) AirSeed may subcontract any aspect of providing the Services and the Client hereby consents to such subcontracting.
(e) The Client has nominated a representative (the Client Representative), including an individual and an associated company, as set out in the Client Form to act on its behalf in relation to this Agreement. The Client Representative shall have the authority to provide instructions, make decisions, approve deliverables, and otherwise liaise with AirSeed for the purposes of fulfilling the Client’s obligations under this Agreement. The Client must notify AirSeed in writing as soon as practicable should there be any changes to this nomination.
2 TERM
(a) This Agreement commences on the Start Date and will continue for the Initial Term and any Renewal Term agreed pursuant to clause 2.1(b), unless terminated earlier in accordance with this Agreement (the Term).
(b) At any time prior to the expiry of the Initial Term, the parties may agree in writing to extend the term of this agreement for an additional period (Renewal Term), in which case the operation of this agreement will be extended for the Renewal Term.
(c) Where the Term is extended in accordance with clause 2.1(b), the Client will enter a new Client Form with AirSeed, which shall represent the agreed terms of the Renewal Term.
(d) If any Services are supplied after the expiry of the Term, without the parties having entered into a replacement agreement or otherwise having expressly agreed in writing that these terms will not apply, the terms of this Agreement will continue to apply for those Services.
3 SERVICES
(a) In consideration for the payment of the fees set out in the Client Form (Fees), AirSeed will provide the Client with the services set out in a Client Form (Services).
(b) Unless otherwise agreed, AirSeed may, in its discretion:
(i) not commence work on any Services until the Client has paid any Fees or deposit payable in respect of such Services;
(ii) change the Planting Area in accordance with clause 5; or
(iii) withhold delivery of Services until the Client has paid an invoice in respect of such Services.
(c) On completion of the Services, AirSeed may, if requested to do so, provide the Client or the Client Representative with evidence of the Goods having been planted at the Planting Area or Substituted Planting Area (as the case may be). Such evidence will be in a manner and form reasonably determined by AirSeed.
(d) As part of the Services, AirSeed will conduct a post-planting field monitoring visit at no additional cost and provide a written monitoring report to the Client. This report will include AirSeed’s qualitative observations and overall assessment of planting performance. The Client acknowledges that this report does not include, and AirSeed is not obligated to provide, any raw data, field notes, photographs, geospatial datasets, or other information collected in the process of preparing the report, unless expressly agreed to in writing. All such data remains the sole and exclusive property of AirSeed.
4 CHANGES
(a) The Client must pay a ‘change in scope fee’, in an amount reasonably determined by AirSeed (Change Fee), for changes to Services requested by the Client or the Client Representative which alter the scope set out in the relevant Client Form and require AirSeed to perform additional work or incur additional costs (Changes).
(b) Unless otherwise agreed in writing, AirSeed may at its discretion extend or modify any delivery schedule or deadlines for the Services as may be reasonably required by such Changes.
(c) AirSeed will only be required to perform Changes, if:
(i)AirSeed agrees in writing to perform the Changes;
(ii) the Client or the Client Representative confirms in writing that they wish for AirSeed to proceed with the Changes and accepts the relevant Change Fee; and
(iii) the Client pays the Change Fee, in accordance with clause 7, as if it was a Fee.
(d) If AirSeed is unable to perform or continue performing the Services on any scheduled date or during and agreed timeframe due to any delay, inaction, or failure by the Client or the Client Representative (including but not limited to delays in providing required information, approvals, access to the Planting Area, or payment), then, without limiting its other rights under this Agreement, AirSeed may:
(i) Charge the Client a stand down fee of $160 (plus GST) per hour per AirSeed personnel (or AirSeed representative) onsite for the duration of the delay; and
(ii) Invoice the Client for any additional associated costs incurred as a result of the delay (including but not limited to equipment hire, accommodation, transport or third-party costs), at cost + a 20% administration margin.
These amounts are payable by the Client as if they were Fees under this Agreement and are a genuine pre-estimate of AirSeed’s costs arising from Client-caused delay.
5 PLANTING AREA
The Client acknowledges that:
(a) The Planting Area refers to the specific geographical area, as agreed in writing by AirSeed and the Client or the Client Representative, within which the Supplier will deliver the Goods and perform the Services. The boundaries and characteristics of the Planting Area will be confirmed prior to commencement and may include, but are not limited to, coordinates, maps, or other spatial data provided to the Client or the Client Representative.(collectively, the Planting Area Conditions).
(b) where the Planting Area Conditions do not allow for provision of the Services at the Planting Area, AirSeed will, on providing written notice to the Client or the Client Representative, determine an alternative location (Substituted Planting Area); and
(c) the Planting Area is not a material term of this Agreement, and the Client shall have no claim against AirSeed for breach of this Agreement in circumstances where a Substituted Planning Area is determined in accordance with clause 5(c).
6 CLIENT OBLIGATIONS
(a) The Client or the Client Representative must provide AirSeed with all documentation, information and assistance reasonably required for AirSeed to perform the Services.
(b) The Client and the Client Representative agree to liaise with AirSeed as it reasonably requests for the purpose of enabling AirSeed to provide the Services.
7 PAYMENT
7.1 FEES
The Client must pay the Fees in the amount, and on or before the Due Date(s), set out in the Client Form.To the maximum extent permitted under the Competition and Consumer Act 2010 (Cth), any Fees paid in accordance with this Agreement are non-refundable.
7.2 INVOICES
Unless otherwise set out in the Client Form:if AirSeed issues an invoice to the Client, payment must be made by the time(s) specified in such invoice; andin all other circumstances, the Client must pay the Fees within 2 weeks of receiving an invoice for amounts payable.
7.3 PAYMENT METHOD
The Client must pay Fees using the fee payment method specified in the Client Form.
7.4 GST
Unless otherwise indicated, amounts stated in a Client Form do not include GST. In relation to any GST payable for a taxable supply by AirSeed, the Client must pay the GST subject to AirSeed providing a tax invoice.
7.5 CARD SURCHARGES
AirSeed reserves the right to charge credit card surcharges in the event payments are made using a credit, debit or charge card (including Visa, MasterCard or American Express).
8 NO INTEREST
The Client acknowledges and agrees that:
(a) nothing in this Agreement shall create any proprietary interest in the Goods, the Planting Area or Substituted Planting Area (as the case may be), or otherwise in the assets of AirSeed (Interest); and
(b) the Client and the Client Representative will not assert or claim any right to any such Interest.
9 THIRD PARTY GOODS AND SERVICES
(a) Any Service that requires AirSeed to acquire goods and services supplied by a third party on behalf of the Client may be subject to the terms & conditions of that third party (Third Party Terms).
(b) The Client agrees to any Third Party Terms applicable to any goods and services supplied by a third party that the Client or AirSeed acquires as part of the Services and AirSeed will not be liable for any loss or damage suffered by the Client in connection with such Third Party Terms.
10 CONFIDENTIALITY
(a) Except as contemplated by this Agreement, each party must not, and must not permit any of its officers, employees, agents, contractors or related companies to, use or disclose to any person any confidential Information disclosed to it by the other party without its prior written consent.
(b) This clause 10 does not apply to:
(i) information which is generally available to the public (other than as a result of a breach of this Agreement or another obligation of confidence);
(ii) information required to be disclosed by any law; or
(iii) information disclosed by AirSeed to its subcontractors, employees or agents for the purposes of performing the Services or its obligations under this Agreement.
(c) For the purposes of this Agreement, “Confidential Information” means information of or provided by a party to the other party under or in connection with this Agreement that is by its nature confidential information, is designated by the party as confidential, or the other party knows or ought to know is confidential, but does not include information which is or becomes, without a breach of confidentiality, public knowledge.
11 INTELLECTUAL PROPERTY
11.1 BRANDING
The parties (and their subcontractors, employees and agents) grant to each other a non-exclusive, royalty free, non-transferable, worldwide and irrevocable licence to use each other’s Branding for the exclusive purpose of promoting and publicising the Services and AirSeed. The parties:warrant that their use of the Branding as contemplated by this Agreement will not infringe any third-party Intellectual Property Rights; and will indemnify one another from and against all losses, claims, expenses, damages and liabilities (including any taxes, fees or costs) which arise out of such infringement or a claim of such an infringement.
11.2 CLIENT CONTENT
The Client and the Client Representative grant to AirSeed (and its subcontractors, employees and agents) a non-exclusive, royalty free, non-transferable, worldwide and irrevocable licence to use the Client Content for marketing purposes. The Client and the Client Representative:warrants that AirSeed’s use of Client Content as contemplated by this Agreement will not infringe any third-party Intellectual Property Rights; and will indemnify AirSeed from and against all losses, claims, expenses, damages and liabilities (including any taxes, fees or costs) which arise out of such infringement or a claim of such an infringement.
11.3 DEVELOPED IP
All Developed IP will be solely and exclusively owned by AirSeed.
11.4 AIRSEED IP
(a) AirSeed grants to the Client a non-exclusive, royalty free, non-transferable and revocable licence to use Service Provider IP and any Developed IP to the extent required for the Client to use, enjoy the benefit of, publish or display the Services and/or the Deliverables.
(b) Unless otherwise agreed in writing by AirSeed or in this clause 11.4, the Client and the Client Representative will not acquire Intellectual Property Rights in any Service Provider IP under this Agreement or as part of receiving the Services.
11.5 DEFINITIONS
For the purposes of this clause 11:
(a) “Branding” means trading name(s), logo(s), branding or registered trademark(s) of AirSeed, the Client and the Client Representative.
(b) “Client Content” means any Material supplied by the Client and the Client Representative to AirSeed under or in connection with this Agreement, including any Intellectual Property Rights attaching to that Material.
(c) “Developed IP” means the Deliverables and any other Material produced by AirSeed in the course of providing the Services, either alone or in conjunction with the Client or others, and any Intellectual Property Rights attaching to that Material or the Deliverables.
(d) “Intellectual Property Rights” means any and all present and future intellectual and industrial property rights throughout the world (whether registered or unregistered), including copyright, trade marks, designs, patents, moral rights, semiconductor and circuit layout rights, trade, business, company and domain names, and other proprietary rights, trade secrets, know-how, technical data, confidential information and the right to have information kept confidential, or any rights to registration of such rights (including renewal), whether created before or after the date of this Agreement.
(e) “Service Provider IP” means all Material owned or licensed by AirSeed that is not Developed IP and any Intellectual Property Rights attaching to that Material.
(f) “Material” means tangible and intangible information, documents, reports, drawings, designs, software (including source and object code), inventions, concepts, data and other materials in any media whatsoever.
12 WARRANTIES
(a) AirSeed provides no guarantee as to the suitability or longevity of the Goods once planted in the Planting Area or Substituted Planting Area (as the case may be). To the maximum extent permitted by applicable law, all express or implied representations and warranties (whether relating to fitness for purpose or performance, or otherwise) not expressly stated in this Agreement or a Client Form are excluded.
(b) Nothing in this agreement is intended to limit the operation of the Australian Consumer Law contained in the Competition and Consumer Act 2010 (Cth) (ACL). Under the ACL, the Client may be entitled to certain remedies (like a refund, replacement or repair) if there is a failure with the goods or services provided.
13 LIABILITY
(a) (Liability) To the maximum extent permitted by applicable law, AirSeed limits all liability in aggregate of all claims to the Client (and any third parties who encounter the services or goods through the Client’s business) for loss or damage of any kind, however arising whether in contract, tort (including negligence), statute, equity, indemnity or otherwise, arising from or relating in any way to this agreement or any goods or services provided by AirSeed to the amount paid by the Client to AirSeed under the most recent Client Form.
(b) (Indemnity) The Client indemnifies AirSeed and its employees, contractors and agents in respect of all liability for any claim(s) by any person (including any third party who encounter the services or goods through the Client’s business) arising from the Client’s or the Client’s employee’s, client’s, contractor’s or agent’s:breach of any third party intellectual property rights; breach of any term of this agreement; negligent, wilful, fraudulent or criminal act or omission; or use of any goods or Services provided by AirSeed.
(c) (Consequential loss) To the maximum extent permitted by law, under no circumstances will AirSeed be liable for any incidental, special or consequential loss or damages, or damages for loss of data, business or business opportunity, goodwill, anticipated savings, profits or revenue arising under or in connection with this agreement or any goods or services provided by AirSeed (except to the extent this liability cannot be excluded under the Competition and Consumer Act 2010 (Cth)).
14 TERMINATION
14.1 TERMINATION FOR CONVENIENCE
(a) Either party may end this agreement for no reason, by providing notice to the other party.
(b) This agreement will end 10 Business Days after the day the notice is sent (the End Date).
(c) Where AirSeed terminates this Agreement under this clause 14.1, AirSeed will refund to the Client the Fee for any portion of the Services not yet delivered.
(d) Where the Client terminates this Agreement under this clause 14.1, AirSeed will be relieved of any obligation to continue to provide the Services. Where AirSeed suffers loss as a result of the Client’s termination, AirSeed may provide the Client with an invoice for AirSeed’s pre-estimated genuine losses as a result of the Client ending this Agreement.
(e) Any pre-estimated losses in clause 14.1(d) will not limit or otherwise affect AirSeed’s rights under this Agreement, at law or otherwise in equity. AirSeed’s losses resulting from the Client’s breach are likely to far exceed its losses resulting from termination for the Client’s convenience.
14.2 TERMINATION FOR BREACH
(a) If a party (the Notifying Party) considers that the other party is in breach of this agreement (the Breach), the Notifying Party may provide a notice to the other party.
(b) The notice must include the nature and details of the Breach, with reference to the relevant clause/s of this agreement. The Notifying Party may, if it wishes to do so, make suggestions for resolving the Breach.
(c) The other party will have 10 Business Days (or longer, in the Notifying Party’s discretion) to rectify the Breach (the Rectification Period).
(d) After the Rectification Period, the Notifying Party will:
(i) if the Breach has been successfully rectified, notify the other party that the agreement will continue; or
(ii) if the Breach has not been successfully rectified, notify the other party that this agreement is terminated (Termination for Breach Notice).
(e) Following a Termination for Breach Notice, the parties will stop all work under this agreement unless otherwise agreed.
(f) Any disputes regarding termination under this clause must be dealt with in accordance with clause 15. The indemnities, warranties and liability caps in clause 13 will apply to any disputes and resulting claims.
14.3 OTHER CONSEQUENCES FOR TERMINATION
If this agreement ends, in addition to the specific consequences set out in clause 14.1 or 14.2 (as applicable), the parties will:
(a) return all property and Confidential Information to the other party;
(b) comply with all obligations that are by their nature intended to survive the end of this agreement; and
(c) stop using any materials that are no longer owned by, or licensed to, them when this agreement ends in accordance with clause 11.
15 IF THE PARTIES HAVE A DISPUTE
(a) If an issue between the parties arises under this agreement that cannot be resolved day-to-day, the parties will make genuine efforts in good faith to participate cooperatively in mediation, at equal shared expense of the parties.
(b) The parties will conduct mediation through the Australian Disputes Centre (ADC) and in accordance with the ADC’s Guidelines for Commercial Mediation (as current at the time of the dispute).
(c) The parties will follow the mediator’s recommendations on the extent of mediation required, and when to stop mediation if the issue cannot be resolved.
(d) If mediation does not resolve the issue, the parties must:
(i) if they haven’t already done so, engage independent legal representation at their own expense to understand the strength of their arguments; and
(ii) based on that advice, if settlement is not achieved, participate in arbitration (or other dispute resolution mechanism agreed in mediation) through the ADC at equal shared expense.
(e) The parties will follow the binding outcome of arbitration (or other agreed mechanism).
(f) Either party may at any time during this process make an offer for settlement. The parties acknowledge and agree it is in their best interests to properly consider all genuine settlement offers. The parties will use best endeavours to avoid litigation and reach a prompt settlement.
(g) The process in this clause does not apply where a party requires an urgent injunction.
16 NOTICES
(a)Any notices required to be sent under this agreement must be sent via email using the party’s email addresses set out in the Client Form and the email’s subject heading must refer to the name and date of this agreement.
(b) If no email address is stated in this agreement, the notice may be sent to the email address most commonly used by the parties to correspond in relation to this agreement at the time the notice is sent.
(c) The notice will be considered to be delivered 24 hours after it was sent, unless the sender has reason to believe the email failed to send or was otherwise not delivered or received.
17 FORCE MAJEURE
(a) A ‘Force Majeure Event’ means any occurrence beyond the control of the Affected Party which prevents the Affected Party from performing an obligation under this agreement (other than an obligation to pay money), including any:
(i) act of God, lightning strike, meteor strike, earthquake, storm, flood, drought, landslide, explosion or fire;
(ii) strike or other industrial action;
(iii) war, terrorism, sabotage, blockade, revolution, riot, insurrection, civil commotion, epidemic, pandemic; or
(iv) decision of a government authority in relation to COVID-19, or other epidemic or pandemic,
to the extent the occurrence affects the Affected Party’s ability to perform the obligation.
(b) If a party (Affected Party) becomes unable, wholly or in part, to carry out an obligation under this agreement (other than an obligation to pay money) due to a Force Majeure Event, the Affected Party must give to the other party prompt written notice of:
(i) reasonable details of the Force Majeure Event; and
(ii) so far as is known, the probable extent to which the Affected Party will be unable to perform or be delayed in performing its obligation.
(c) Subject to compliance with clause 17(b), the relevant obligation will be suspended during the Force Majeure Event to the extent that the obligation is affected by the Force Majeure Event.
(d) The Affected Party must use its best endeavours to overcome or remove the Force Majeure Event as quickly as possible and resume performing the relevant obligation.
18 PROJECT TRANSFER
18.1 If the Client, or the Client Representative, sells, assigns, transfers or otherwise disposes of its interest in the Project (in whole or in part) to another person or entity (a New Proponent), the Client acknowledges and agrees that:
(a) AirSeed will have no obligation to the New Proponent under this Agreement;
(b) AirSeed’s obligations under this Agreement will end in relation to the Project from the date of sale or transfer; and
(c) the Client must not make any representations to the New Proponent about AirSeed’s involvement in, or ongoing obligations to, the Project unless AirSeed agrees in writing.
18.2 The Client must notify AirSeed in writing as soon as practicable after any sale or transfer of the Project.
19 GENERAL
19.1 GOVERNING LAW AND JURISDICTION
This Agreement is governed by the law applying in New South Wales. Each party irrevocably submits to the exclusive jurisdiction of the courts of New South Wales and courts of appeal from them in respect of any proceedings arising out of or in connection with this Agreement. Each party irrevocably waives any objection to the venue of any legal process on the basis that the process has been brought in an inconvenient forum.
19.2 AMENDMENTS
This Agreement may only be amended in accordance with a written agreement between the parties.
19.3 WAIVER
No party to this Agreement may rely on the words or conduct of any other party as a waiver of any right unless the waiver is in writing and signed by the party granting the waiver.
19.4 SEVERANCE
Any term of this Agreement which is wholly or partially void or unenforceable is severed to the extent that it is void or unenforceable. The validity and enforceability of the remainder of this Agreement is not limited or otherwise affected.
19.5 JOINT AND SEVERAL LIABILITY
An obligation or a liability assumed by, or a right conferred on, two or more persons binds or benefits them jointly and severally.
19.6 ASSIGNMENT
A party cannot assign, novate or otherwise transfer any of its rights or obligations under this Agreement without the prior written consent of the other party.
19.7 COUNTERPARTS
This Agreement may be executed in any number of counterparts. Each counterpart constitutes an original of this Agreement and all together constitute one Agreement.
19.8 COSTS
Except as otherwise provided in this Agreement, each party must pay its own costs and expenses in connection with negotiating, preparing, executing and performing this Agreement.
19.9 ENTIRE AGREEMENT
This Agreement embodies the entire Agreement between the parties and supersedes any prior negotiation, conduct, arrangement, understanding or Agreement, express or implied, in relation to the subject matter of this Agreement.
19.10 INTERPRETATION
(a) (definitions) capitalised words and phrases used in this Agreement have the meaning given:
(i) to that word or phrase in the Client Form;
(ii) by the words immediately preceding any bolded and bracketed word(s) or phrase(s),
(b) (singular and plural) words in the singular includes the plural (and vice versa);
(c) (currency) a reference to $; or “dollar” is to Australian currency;
(d) (gender) words indicating a gender includes the corresponding words of any other gender;
(e) (defined terms) if a word or phrase is given a defined meaning, any other part of speech or grammatical form of that word or phrase has a corresponding meaning;
(f) (person) a reference to “person” or “you” includes an individual, the estate of an individual, a corporation, an authority, an association, consortium or joint venture (whether incorporated or unincorporated), a partnership, a trust and any other entity;
(g) (party) a reference to a party includes that party’s executors, administrators, successors and permitted assigns, including persons taking by way of novation and, in the case of a trustee, includes any substituted or additional trustee;
(h) (this agreement) a reference to a party, clause, paragraph, schedule, exhibit, attachment or annexure is a reference to a party, clause, paragraph, schedule, exhibit, attachment or annexure to or of this Agreement, and a reference to this Agreement includes all schedules, exhibits, attachments and annexures to it;
(i) (document) a reference to a document (including this Agreement) is to that document as varied, novated, ratified or replaced from time to time;
(j) (headings) headings and words in bold type are for convenience only and do not affect interpretation;
(k) (includes) the word “includes” and similar words in any form is not a word of limitation; and
(l) (adverse interpretation) no provision of this Agreement will be interpreted adversely to a party because that party was responsible for the preparation of this Agreement or that provision.