TERMS AND CONDITIONS
This Agreement sets forth the terms and conditions whereby CTS may from time to time provide services to Client as set out in the Quotation.
NOW THEREFORE IT IS HEREBY AGREED as follows:
(a) In this Agreement, unless the context otherwise requires:
"Affiliate", in relation to a party, means any entity:
(a) that controls the party;
(b) that is controlled by the party; or
(c) that is controlled by an entity that also controls the party,
where "control" includes direct or indirect control, and includes any subsidiary, holding company or operating division of the party from time to time;
"Business Day" means a day that is not a Saturday, Sunday, a public holiday in Sydney;
“Confidential Information” means in relation to each party (for the purposes of this definition, the "Discloser"):
(a) the terms of this Agreement;
(b) all information relating to or used by the Discloser or any of its Affiliates, including know-how, trade secrets, ideas, marketing strategies and operational information;
(c) all information concerning the business affairs (including products, services, customers and suppliers) or property of the Discloser or any of its Affiliates, including any business, property or transaction in which the Discloser or any other member of its group may be or may have been concerned or interested; and
(d) any other information disclosed by or on behalf of the Discloser or any of its Affiliates which, by its nature or by the circumstances of its disclosure, is or could reasonably be expected to be regarded as confidential;
including any such information made available by any third party, but excluding any information:
(i) which is publicly known;
(ii) which is disclosed to the other party without restriction by a third party and without any breach of confidentiality by the third party; or
(iii) which is developed independently by the other party without reliance on any of the Discloser's Confidential Information.
"Controller" has the meaning given in section 9 of the Corporations Act;
"Corporations Act" means the Corporations Act 2001 (Cth.);
"Fees" means the Standard Fees and the Additional Fees, as set out in the Fees Schedule;
"Force Majeure Event" has the meaning given in clause 11.1;
"GST" means the goods and services tax as defined in the GST Law, or any other like tax;
"GST Amount" has the meaning given in clause 4.2(a);
"GST Law" means the A New Tax System (Goods and Services Tax) Act 1999, A New Tax System (Goods and Services Administration) Act 1999, A New Tax System (Goods and Services Tax Transition) Act 1999, Taxation Administration Act 1953 and any regulations made pursuant to any of these Acts, or if any one of these Acts does not exist for any reason, any act imposing or relating to a GST and any regulation made pursuant to any such Act;
"Insolvency Event" means the happening of one or more of the following events:
(a) except for the purpose of a solvent reconstruction or amalgamation which has the prior written consent of a party:
(i) process is filed in a court seeking an order that the other party be wound up or that a Controller be appointed to it or any of its assets, unless the application is withdrawn, struck out or dismissed within five (5) Business Days of it being filed; or
(ii) an order is made that the other party be wound up or that a Controller be appointed to it or any of its assets; or
(iii) a resolution that the other party be wound up is passed or proposed;
(b) a liquidator, provisional liquidator, Controller or any similar official is appointed to, or takes possession or control of, all or any of the other party's assets or undertaking;
(c) an administrator is appointed to the other party, a resolution that an administrator be appointed to the other party is passed or proposed, or any other steps are taken to appoint an administrator to the other party;
(d) the other party enters into, or resolves to enter into, an arrangement, compromise or composition with any of, or any class of, its creditors or members, or an assignment for the benefit of any of, or any class of, its creditors, or process is filed in a court seeking approval of any such arrangement, compromise or composition;
(e) a reorganisation, moratorium, deed of company arrangement or other administration involving one or more of the other party's creditors is proposed or effected;
(f) any action is taken by the Australian Securities and Investments Commission with a view to the other party's deregistration or dissolution, or an application is made to the Australian Securities and Investments Commission that any such action be taken;
(g) the other party is insolvent within the meaning of section 95A of the Corporations Act, as disclosed in its accounts or otherwise, states that it is unable to pay its debts or it is presumed to be insolvent under any applicable law;
(h) as a result of the operation of section 459F(1) of the Corporations Act, the other party is taken to have failed to comply with a statutory demand;
(i) the other party stops or suspends or threatens to stop or suspend the payment of all or a class of its debts or the conduct of all or a substantial part of its business;
(j) any event or circumstance set out in section 461 of the Corporations Act occurs in relation to the other party; or
(k) anything having a substantially similar effect to any of the events specified in paragraphs (a) to (j) inclusive happens to the other party under the law of any jurisdiction.
“Intellectual Property Rights” means all rights in or to any patent, copyright, database rights, registered design or other design right, utility model, trade mark (whether registered or not and including any rights in get up or trade dress), brand name, service mark, trade name, eligible layout right, chip topography right and any other rights of a proprietary nature in or to the results of intellectual activity in the industrial, commercial, scientific, literary or artistic fields, whether registrable or not and wherever existing in the world, including all renewals, extensions and revivals of, and all rights to apply for, any of the foregoing rights;
"Services" means the services described in the Quotation, as amended from time to time in accordance with this Agreement;
"Staff" means the natural persons who provide the Services on behalf of CTS, who may be employees of CTS, self-employed or supplied by a sub-contractor;
“Sub-contractor” means a person providing elements of the Services to CTS as listed in the Quotation or as otherwise agreed between the Parties in accordance with Clause 3.2;
“Work Product(s)” means all papers, documents, memos, letters, databases, drawings, source code, object code, data dictionaries, user manuals, data or other deliverables, or other printed, written or computer material created by CTS and/or Staff in connection with the provision of the Services.
(b) The terms and conditions set out in this Agreement override and take the place of any other terms or conditions emanating from or referred to by CTS or Client in relation to the subject matter of this Agreement, including but not limited to any terms and conditions printed on Client's order and CTS’s invoice or delivery note, unless such terms and conditions are expressly stated to amend this Agreement and are duly signed on behalf of both parties in accordance with Clause 16.
(c) Schedules and addenda to this Agreement form part of the Agreement.
2.1 Provision of the Services
(a) CTS shall perform the Services at the location(s) and otherwise fulfil its obligations as set out in the Quotation for the benefit of Client and Client's Affiliates.
(b) Client may propose changes within the general scope of this Agreement at any time. If, in the opinion of CTS, any such change is a substantial change and causes a significant increase in the cost of performance to CTS or time required for such performance, the parties shall negotiate reasonably and in good faith for an equitable adjustment to the Fees and timeframes for provision of the Services. Upon receiving a notice or request from Client, CTS shall (at no additional cost to Client) promptly submit to Client a change in scope proposal which shall outline in detail the required changes to the scope of the Services and associated impact on the Fees. Any such changes must be agreed by both parties in writing in accordance with clause 16. If the parties are unable to agree the changes to the scope of the Services and the Fees, they shall submit to the dispute resolution procedure under clause 13. The existing terms of this Agreement will remain in place until the dispute is resolved or the Agreement expires, whichever is the earlier.
3.1 Provision of Staff
(a) CTS shall provide Staff to perform the Services.
(b) CTS shall ensure that all Staff are suitably qualified and skilled for the performance of the Services and shall be solely responsible for ensuring its Staff's full compliance with all relevant terms and conditions of this Agreement.
CTS may not, without the prior written consent of the Client, sub-contract all or any part of the Services under this Agreement. However sub-contracting shall in no way relieve CTS from its obligations to provide the Services and CTS shall at all times remain liable for any sub-contractor’s performance of Services hereunder and for making payment to the sub-contractor. CTS shall ensure that each sub-contractor is aware of, and has agreed to comply with, all the terms of this Agreement relevant to the sub-contractor's part in the performance of this Agreement.
3.3 Client Policies
CTS shall notify all Staff and sub-contractors of relevant Client compliance, confidentiality, safety, security and other relevant rules and policies in force from time to time which have been provided to CTS by Client (“Client Policies”) and ensure compliance to such policies. CTS shall arrange for all Staff and sub-contractors to sign any related acknowledgements as are reasonably requested by Client indicating that such Staff and sub-contractors will comply with the Client Policies, and CTS will deliver these acknowledgements to Client at the time at which the Staff and/or sub-contractors commence work under this Agreement, except where otherwise agreed in writing with Client.
Any specific Client property equipment or other property related training required will need to be covered under the hours for the Services (Client is responsible for co-ordinating this for primary and secondary support staff).
3.4 Access to Site
(a) To the extent required for CTS to perform its obligations under this Agreement, Client shall permit CTS, its Staff and sub-contractors to enter its sites on reasonable notice, and arrange for CTS, its Staff and sub-contractors to access third party sites as necessary for the provision of the Services. Client may revoke or suspend such permission in part or in whole including, without limitation, in respect of certain sites only and/or in respect of certain individuals;
(b) Client shall ensure that at all times it maintains a safe workplace, complies with all applicable occupational health and safety laws and provides appropriate information to CTS's Staff and sub-contractors to ensure their health and safety while such Staff and sub-contractors are required to perform the Services at sites owned or controlled by Client.
(c) CTS shall use its best endeavours to ensure that its Staff and sub-contractors who are present on the sites, obey the reasonable instructions of representatives of Client and observe any reasonable conditions communicated to them from time to time by Client.
3.5 Non-solicitation of CTS Personnel during Relevant Period
(a) Each party must not, without the prior written consent of the other party, attempt, or otherwise take steps to employ or engage the services of the other party’s personnel (whether directly, or through a third party) during the Term or during the six (6) months following the conclusion of the Term (together, the Relevant Period), and other than as set out below in the remainder of this clause 3.5.
(b) Where, during the Relevant Period, a party wishes to employ or engage, and/or employs or engages any of the other party’s personnel (including where a party procures a third party to approach, employ and/or engage any of the other party’s personnel), that party must:
(i) notify the other party of any intent to offer employment or an engagement; and
(ii) if CTS consent is given and the employee accepts the offer of employment or engagement, pay to the other party a fee of 25% of the salary of the hired personnel or $18,000 ex GST, whichever is higher, within 30 days of receipt of an invoice listing the relevant employment fees.
(c) Each party warrants that, notwithstanding any matter set out in this clause 3.5, it will not take any intentional steps to induce, conspire with or otherwise encourage the other party’s personnel to breach any contractual obligation owed to the other party by such personnel, and acknowledges that nothing in this clause is intended to affect the individual contractual relations between the other party and its personnel.
For the purposes of this clause 3.5 “personnel” includes any natural person or company or independent contractor that CTS employs or engages and whom Client comes into direct contact with in the course of the provision of CTS's Services (whether or not such personnel are Staff providing the Services).
4. FEES, PAYMENT AND OTHER FINANCIAL PROVISIONS
(a) In consideration for the Services provided by CTS, Client shall pay to CTS the Standard Fees set forth in the Fees Schedule on the terms stated therein. The Standard Fees shall be exclusive of taxes, which may be due on the Services provided hereunder and any disbursements or out-of-pocket expenses which CTS may incur in the provision of the Services, unless indicated otherwise.
(b) CTS will charge the Additional Fees for the Services as specified in the Fees Schedule. All Additional Fees must be agreed by Client in writing prior to being incurred.
(c) Client will not be responsible for paying overtime rates unless such overtime rates are expressly agreed to in writing prior to such overtime being incurred.
(d) The Fees specified in the Schedules shall only be varied by agreement in accordance with clause 16.
(a) If GST is payable as a consequence of any supply made (or deemed to be made) by one party to the other in connection with this Agreement, the party receiving the supply must pay to the party making the supply an amount equal to the GST payable in respect of the supply ("GST Amount") in addition to the Fees or other due consideration (if any) required to be paid under any other provision of this Agreement.
(b) Notwithstanding any other provision of this Agreement, if either party is required to reimburse or indemnify the other party for any costs, expenses or other amounts, the amount to be reimbursed or indemnified must be reduced by any part which is recoverable as an input tax credit by the party which incurred it (or a representative member of that party's GST group).
(c) Each party must ensure that each invoice it presents to the other party under this Agreement in respect of any GST Amount is a valid tax invoice. Notwithstanding any other provision of this Agreement, each party's obligation to pay an invoice presented under this Agreement is conditional upon the other party's compliance with this clause 4.2 in respect of that invoice.
(d) Terms used in this clause 4.2 (including "supply", "consideration", "representative member", "tax invoice" and "GST group") have the same meaning as defined in the GST Law.
(a) All sums due to CTS under this Agreement shall be payable by Client within 30 days of Client's receipt of a correct, valid and properly due invoice from CTS.
(b) Payments shall be made by direct bank transfer to CTS' nominated bank account or by such other means as may be agreed between the parties in writing from time to time.
(c) The parties shall both immediately use their best endeavours to agree the amount of any disputed item, but failing agreement the matter may be resolved by the mode of dispute resolution in accordance with Clause 13.
(d) If Client does not pay the entire amount due to CTS by 90 days after the applicable due date for payment:
(i) Client must pay interest on any outstanding amount owed to CTS at the rate of 5% per annum plus a base rate to be determined by reference to the business reference rate (however described) of the Commonwealth Bank applicable on the due date, on the full amount owing from the date payment became due calculated daily until the date of full and final payment; and
(ii) CTS may, at its sole option, suspend further performance of the Services.
5. REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS
5.1 CTS warrants and represents to Client and the Client Affiliates that:
(a) it will perform its obligations hereunder in accordance with the Service Levels and using the skill and care of a diligent and competent supplier in a professional and timely manner, using competent Staff who have the necessary technical skills, qualifications, experience, certifications and training to perform and complete the Services in accordance with best standards and practices observed in the industry for similar services;
(b) it will perform its obligations hereunder in a safe manner which, at a minimum, complies with all relevant health and safety and environmental legislation and regulations applicable in all relevant jurisdictions and any Client policies provided by Client to CTS regarding health and safety, environmental management and security in force from time to time;
(c) it will perform its obligations hereunder in compliance with any applicable laws and regulations;
(d) it shall require its Staff to co-operate with all staff of Client and accept and comply with all reasonable directions and instructions from the persons in Client's organization to whom they are responsible; and
(e) it shall comply with and notify all its Staff of relevant local Client compliance, confidentiality, design guidelines, safety, security and other relevant rules and policies in force from time to time which may apply and are made known to CTS by Client.
6. TERM AND TERMINATION
6.1 This Agreement shall commence on any agreed and identified Effective Date unless otherwise agreed in the Quotation and shall continue in force until the date agreed in the Quotation.
6.2 Either party shall be entitled to terminate this Agreement immediately upon written notice to the other party in the event that:
(a) subject to clause 2.2, the other party commits a breach of this Agreement which breach is not capable of remedy, or which breach (if capable of remedy) is not remedied within 30 days after the service of written notice by the non-defaulting party requiring the defaulting party to remedy the breach;
(b) a Force Majeure Event continues for more than 14 days; or
(c) an Insolvency Event occurs in respect of the other party.
6.3 If Client terminates this Agreement other than as permitted under clause 6.2. Client shall, without prejudice to any other rights or remedies CTS might have, pay to CTS an amount equal to the minimum Standard Fees that would have been payable by Client during the remainder of the Term of the Agreement had it not been terminated
6.4 Notwithstanding clause 6.3, this Agreement may be terminated other than as permitted under clause 6.2 without Client being required to make the payment provided for by clause 6.3, if the parties have agreed to enter into and executed a new agreement for the provision of the Services which shall supersede this Agreement, in which case this Agreement shall terminate on a date to be agreed by the parties in writing.
6.5 Termination of this Agreement shall not affect the accrued rights and remedies of either party in relation to any default of the other party prior to such termination or the survival of Clauses 1 (Interpretation), 5 (Representations, Warranties and Undertakings), 7 (Intellectual Property), 8 (Confidentiality), 9 (Liability), 10 (Insurance) and any other provision of this Agreement which is expressly or by implication intended to survive termination.
6.6 Following expiration or termination of this Agreement for any reason:
(a) any and all amounts owing by Client to CTS will become immediately due and payable:
(b) CTS may immediately cease performing the Services, or from such date as may be agreed by the parties; and
(c) each party shall immediately, and in any event, within 7 days from the other party's request, return all materials and copies thereof (whether in hard or electronic format) relating to the Confidential Information provided by the other party to the first party under this Agreement, except that the Client may retain a single copy of all materials and Confidential Information in order to comply with its professional obligations and internal record keeping requirements.
7. INTELLECTUAL PROPERTY
7.1 Pre-Existing Intellectual Property
(a) Each party shall retain ownership of its Intellectual Property Rights existing at the Effective Date.
(b) Client grants to CTS a royalty free, non-exclusive license to use and copy (and to permit the sub-contractors to use and copy) Client's pre-existing Intellectual Property Rights (including intellectual property licensed by Client from third parties), solely to the extent necessary for the purposes of providing the Services.
(c) In the case of any intellectual property licensed from a third party, Client warrants that it has obtained any necessary authority, permission or licence from the relevant third party in order to grant the above sub-license.
7.2 Intellectual Property in Work Products
(a) Client acknowledges that CTS is the owner of all Intellectual Property Rights in Work Products, except as set out in clause 7.2(c). Client must take such steps as are reasonably necessary to protect CTS's Intellectual Property Rights in Work Products, including by treating Work Products as Confidential Information if appropriate.
(b) CTS grants to Client a worldwide, royalty-free, fully paid up, perpetual, non-exclusive, transferable right and licence (with the right to sub-license) to copy and use Work Products for Client's business purposes.
(c) If CTS develops any Work Products specifically for Client and/or containing Client's Intellectual Property Rights and Client has paid CTS for its services in developing those Work Products, Client shall own any Intellectual Property Rights in such Work Products ("Client Work Products"). Client grants CTS a worldwide, royalty-free, fully paid up, perpetual, non-exclusive, transferable right and licence to copy and use Client Work Products for CTS's internal business purposes.
8. CONFIDENTIALITY AND PRIVACY
8.1 Each party undertakes to maintain and procure the maintenance of the confidentiality of Confidential Information at all times and to keep and procure the keeping of all Confidential Information secure and protected against theft, damage, loss or unauthorised access or processing, and not at any time, whether during the term of this Agreement or at any time thereafter, without the prior written consent of the other party directly or indirectly, to use or authorise or permit the use of or disclose, exploit, copy or modify any Confidential Information, or authorise or permit any third party to do the same, other than for the sole purpose of the performance of its rights and obligations under this Agreement.
8.2 Both parties undertake to disclose Confidential Information only:
a) to those of its officers, employees, agents and sub-contractors to whom, and to the extent to which, such disclosure is necessary for the purposes contemplated under this Agreement, and to procure that such officers, employees, agents and sub-contractors observe the terms of the confidentiality obligations set out in this clause 8; or
b) where required by law.
8.3 The parties will:
a) use any personal information obtained or collected under this Agreement, only for the purposes of performing its obligations under this Agreement;
b) not disclose any personal information without the prior written consent of the other party; and
c) comply with the National Privacy Principles under the Privacy Act 1988 (Cth).
8.4 This Clause 8 shall survive the expiry or termination of this Agreement.
9.1 Except as expressly provided in this Agreement, and to the full extent permitted by law, CTS shall not be liable to Client on account of any claim (whether based upon principles of contract, warranty, negligence or otherwise) for any loss or damage, including loss of profits, loss of business, loss of goodwill or any special, incidental, indirect or consequential damages whatsoever, even if CTS has been advised of the possibility of such damages, except to the extent that such loss or damage arises as a result of CTS' or its Staff's gross negligence or wilful misconduct.
9.2 Nothing in this Agreement will operate to exclude, restrict or modify the application of the provisions of the Competition and Consumer Act 2010 (Cth), the exercise of a right conferred by such provision, or any liability of a party for a breach of a condition or warranty implied by such a provision or a remedy imposed by such a provision. Certain legislation, including the Competition and Consumer Act 2010 (Cth) of Australia, may imply warranties or conditions or impose obligations upon CTS which cannot be excluded, restricted or modified or cannot be excluded, restricted or modified except to a limited extent. This Agreement must be read subject to these statutory provisions. If these statutory provisions apply, to the extent to which CTS is entitled to do so, CTS limits its liability in respect of any claim under those provisions to:
(a) in the case of goods, at CTS' option:
(i) the replacement of goods or the supply of equivalent goods;
(ii) the repair of the goods;
(iii) the payment of the cost of replacing the goods or of acquiring equivalent goods; or
(iv) the payment of the cost of having the goods repaired; and
(b) in the case of services, at CTS’s option:
(i) the supplying of the services again; or
(ii) the payment of the cost of having the services supplied again.
9.3 Notwithstanding anything else in this Agreement, and to the extent permitted by law, the liability of CTS to Client for all loss or claims arising out of or in connection with this Agreement, whether in contract, tort (including negligence), indemnity, breach of warranty or otherwise will be limited to an amount equal to the total Standard Fees (excluding GST) invoiced and paid during the previous 12 months of this Agreement, or if the Agreement has been operating for less than 12 months, that period.
9.4 Despite any other clause or provision of this Agreement and to the extent permitted by law, the Client’s aggregate liability to CTS, in contract, tort (including negligence), strict liability or otherwise, for all claims arising out of or in connection with this Agreement shall be limited to $50,000.
10.1 CTS shall, at its own expense, obtain and maintain throughout the duration of this Agreement, and until all Services under this Agreement have been fully performed and completed, such type and level of insurance as is reasonable or prudent in the circumstances, but in no event less than:
(a) general liability insurance in an amount not less than A$5 million combined single limit per occurrence for its legal liability due to bodily injury, including death, and damage to property;
(b) professional indemnity insurance for a minimum amount of A$5 million per occurrence protecting CTS and its employees, agents and contractors against their legal liability for loss or damages arising out of the rendering or failing to render the Services; and
(c) any other insurance applicable to the provision of the Services.
10.2 CTS upon request will give Client a copy of current certificates of currency for the applicable insurances on commencement and each 12 months.
11. FORCE MAJEURE
11.1 Neither party shall be liable to the other for any delay or non-performance of its obligations under this Agreement arising from any act of God, war, fire, flood, explosion, acts of terrorism or civil commotion or other event beyond a party's reasonable control, excluding for the avoidance of doubt, strikes of CTS’s Staff or computer viruses or similar matters or events (“Force Majeure Event”).
11.2 Subject to the affected party promptly notifying the other party in writing of the cause and the likely duration of the Force Majeure Event, the performance of the affected party's obligations (other than an obligation to make a payment), to the extent affected by the Force Majeure Event, shall be suspended during the period that the Force Majeure Event persists, subject to termination by either party in accordance with Clause 6.2(b).
12. RELATIONSHIP OF THE PARTIES
12.1 CTS shall be an independent contractor. The relationship between Client and CTS shall not be construed as an employment relationship, and shall not constitute a partnership, joint venture, or agency of any kind, nor shall the relationship be construed as any type of legal relationship under which the actions or inactions of either party could result in any liability for the other party.
12.2 CTS is responsible for annual leave, sick leave, long service leave, work care levies, group tax, sickness or accident insurance, payroll tax, PAYE tax, worker’s compensation and other pension or employment related benefits in respect of CTS, its Staff, and any other person who is engaged by CTS to perform work in connection with the provision of the services under this agreement. CTS acknowledges that it has no right or claim against Client for any employee benefits.
12.3 Nothing herein shall be deemed to confer upon CTS any authority, express or implied, to bind Client or to represent to any third party that CTS is acting either as a representative of, or in any capacity for Client.
13. DISPUTE RESOLUTION
13.1 Each party will not commence any court or arbitration proceedings if a dispute arises under this Agreement unless it has first complied with this clause in the following order:
(a) the dispute must be referred to the party's contract manager who will give written notice to the other party's contract manager, specifying the nature of the dispute;
(b) on receipt of written notice by the other party under clause 13.1(a)), the parties' respective contract managers will attempt to resolve such dispute as soon as possible;
(c) if the dispute has not been resolved within a maximum of 10 days from the date of the notice issued in accordance with clause 13.1(a), such dispute must be referred for resolution to the parties' senior management;
(d) if, having been so referred, the dispute is not resolved within a further 20 days, such dispute may be referred, by either party, to the Australian Commercial Disputes Centre Ltd ("ACDC") and the parties will use reasonable endeavours to resolve the dispute following the ACDC Guidelines for Commercial Mediation in force from time to time.
13.2 Notwithstanding clause 13.1, the party claiming a dispute may seek urgent equitable relief before the appropriate court.
13.3 Each party must continue to perform its obligations under this Agreement, notwithstanding that the parties are participating in dispute resolution.
13.4 Each party must pay its own costs in relation to complying with this clause 13, except that the costs and expenses of the mediator will be borne by the parties equally.
13.5 Any settlement reached by a mediation under this clause 13 is binding on the parties.
14. NOTICES AND COMMUNICATIONS
14.1 In proving service of a notice or document under this Agreement it shall be sufficient to prove that an envelope containing the notice or document was properly addressed and delivered by courier or posted by registered post:
(a) to CTS at:
Corporate Technology Services Pty Ltd
Suites 201-203, Level 2, 50 Clarence Street, Sydney, NSW 2000
Fax: (02) 8003-2677
(b) to Client at the details on their purchase order for the Services.
or at any other address or to any other fax number or addressee as the relevant party may have notified to the other party in accordance with this Clause.
14.2 Unless there is evidence that it was received earlier, such notice or document shall be deemed to have been served:
(a) if delivered by courier, when left at the address referred to above;
(b) if sent by post to an address within the country of postage, two Business Days (in the city of the recipient) after posting it;
(c) if sent by post to an address outside the country of postage, five Business Days (in the city of the recipient) after posting it; or
(d) if sent by fax, on receipt by the sender of an acknowledgement or transmission report generated by the sender's machine indicating that the whole fax was sent to the recipient's fax number, but if a notice or document is received by courier or fax on a day that its not a Business Day, or after 5.00pm recipient's local time on a Business Day, the notice will be considered to have been received by the recipient at 9.00am on the next Business Day.
No single or partial exercise, or failure or delay in exercising any right, power or remedy by any party shall constitute a waiver by that party of, or impair or preclude any further exercise of, that or any other right, power or remedy arising under this Agreement or otherwise.
No purported modification, amendment or waiver of this Agreement shall be effective unless it is in writing and signed by an authorised representative of each party.
Client shall not assign any of its rights or subcontract any of its obligations under this Agreement without the prior written consent of CTS. Subject to clause 21, CTS may assign its rights and delegate its responsibilities under the Agreement to an Affiliate upon providing prior written notice to the Client.
To the extent that any provision of this Agreement is found by any court or competent authority to be invalid, unlawful or unenforceable in any jurisdiction, that provision shall be severed to the extent that it is invalid, unlawful or unenforceable, and such finding shall not affect the validity or enforceability of the balance of the provision or the remainder of this Agreement; nor shall it affect the validity, lawfulness or enforceability of that provision in any other jurisdiction.
19. GOVERNING LAW AND JURISDICTION
This Agreement shall be governed by and construed in accordance with the laws of New South Wales and the parties submit to the exclusive jurisdiction of the courts that have jurisdiction in New South Wales.