Subscription License Agreement C2CPRO Pty Ltd (Version 2022.02)
Parties
C2CPRO Pty Ltd (Licensor)
The party named in Item 1 of Schedule 1 of the address set out in Item 2 of Schedule 1 (Licensee).
Background
A. The Licensee wishes to obtain a licence for the provision of the C2CPROject Flow from the Licensor,
B. The Licensor warrants that it is able to grant to the Licensee the rights to the Licensee to use the C2CPROject Flow.
C. The Licensor has agreed to grant the Licensee a licence of the supply the C2CPROject Flow on the terms and conditions as set out in this agreement.
Operative Provisions
1. Licence Conditions
The Licence
1. The Licence will commence on the Commencement Date.
2. The Licensor licenses the Licensee on a non-exclusive basis to the Intellectual Property within Australia.
3. The Licensor provides no services that may be deemed to be offering, providing, or undertaking any building services or work including but not limited to;
a. directly or indirectly causing the building work to be carried out
b. providing administration, advisory, management or supervisory services for building work, including:
i. entering into a contract or submitting a tender for building work
ii. offering (quoting and tendering) to carry out building work
iii. taking payment or arranging payment of subcontractors
iv. arranging labour or arranging and conducting on-site meetings and inspections
v. preparing plans and specifications
vi. coordinating the scheduling of work for building contractors even as an agent for another person
vii. obtaining engineering or soil reports, or arranging for certificates from Local government to be issued etc
viii. supervising building work
ix. providing advice or a report for a building
x. contracting for work as a subcontractor to a builder.
Period
4. The Licensor grants the Licensee the right to use the Intellectual Property for the Term, subject to the terms and conditions of this agreement.
C2CPROject Flow
5. There are three specific allocations of services under the C2CPROject Flow Platform
1. The Estimating Tender Component
2. The Construction Management Business Component
3. C2CPRO Lite with limitations to components of the C2CPROject Flow Platform
6. The Estimating Tender Component (refer Schedule 4 C2C PROject Flow Chart):
1. The Licensee may use the Estimating Tender Component for non-construction management contracting suitable for a tender offer for a standard contract; for example but not limited to HIA Domestic Home/Renovation Contracts.
2. If the Licensee elects to use the Estimating Tender Component for the purpose of standard contracts as per Clause 1.6.1, the Construction Management Business Component shall be excluded from use.
7. The Construction Management Business Component:
1. Accesses all the components of the C2CPROject Flow
2. The Licensee agrees to undertake the processes as shown in the C2C Project Flow chart, without deviation, to ensure the C2C program integrity is maintained and the end customer receives the expectations as promoted in any Marketing Materials, including but not limited to, Licensees own material; that must be approved by the Licensor, or marketing material, directly provided by the Licensor in the public domain.
3. Is restricted to the sole purpose of creating a C2CPRO Domestic Construction Management Contract
4. Is restricted to the provisions and setup of the C2CPRO Joint Security Account
5. Is restricted to the modules of Construction Management, Joint Security Account, Project Management and Completion of the C2CPROject Flow
8. C2CPRO Lite:
1. Accesses the following components of the C2CPROject Flow: Administration, Xplorer, Discovery, Shopping List.
2. Is restricted to the sole purpose of using these components to estimate and qualify project budgeting.
3. The resulting reports or data cannot be used to offer a tender cost for contract.
9. The Licensee will maintain C2CPROject Flow use terms and conditions as provided by Licensor for the Construction Management Business Platform sector of the C2CPROject Flow
10. The Licensee may only use the C2CPROject Flow without alterations and or additions to the C2CPROject Flow.
11. In reference to clause 1.10 "alterations and or additions" shall be taken to mean direct changes to the C2CPROject Flow and does not mean the use of third-party software standing separate to the C2CPROject Flow. For example, PDF measuring tools may be used in conjunction with C2CPROject Flow,
12. The Licensee agrees that the C2CPROject Flow benefits as promoted to customers, require compliance with the processes, directions, or any other information offered by the Licensor from time to time, to ensure customer expectations because of marketing materials, are met by the Licensee.
13. A failure to undertake any directions by the Licensor to meet any of the individual requirements of clauses 1.6 to 1.11, shall be deemed a breach of agreement, and a Notice shall be issued from the Licensor to the Licensee in accordance with clause 7.2
Prior Representations Statement
14. The Licensee is to provide to the Licensor the completed:
1. Prior Representations Statements set out in Schedule 2.
Contracting with third parties
15. The legal entity that constitutes the Licensee agrees to only enter into construction contracts, pursuant to this Licence, with third parties for use of the C2CPROject Flow. For the sake of clarity, the Licensor acknowledges:
1. Under no circumstances can the C2CPROject Flow be used by the Licensee to provide Information, services or any other value add to those operations by the Licensee that are outside of the arrangements governed by this agreement.
2. the Licensee may establish one or more further building entities or create franchises of its entity during the term of this agreement, and any such entity or entities are not, unless the Licensee so elects and notifies the Licensor in writing of that election, to be part of or covered by this agreement.
3. The Licensee may enter any form of payment for service or receive payments for services covered by the C2CPROject Flow with any other party, including but not limited to, designers, suppliers, consultants and trades and must be offered as a component of C2CPROject Flow and suitably marked under the terms and use of the Trademark in accordance with clause 3 and 4.
2. Payments, record-keeping, and auditing
Payments
1. The Licensee agrees that the C2CPROject Flow subscription fee does not limit in the first instance, the access of the C2CPROject Flow up until the Construction Management Business Component engagement. Specifically, the C2CPROject Flow subscription fee does permit the use of the Software as stated in clause 2.2. which is subject to the application of a Construction Management Contract Fee.
2. The Construction Management Contract Fee applies for the use of, but not limited to the:
1. Any log in to the C2CPROject Flow by any other party, but not limited to designers, consultants, customers, owner builders
2. Provision of project management services such as, but not limited to;
2. Owner builder consultancy
1. Property development advisory services
3. Creation, without duplication or copying, of the C2CPRO Domestic Construction Management Contract for any other purposes other than use under C2CPROject Flow
4. Creation, without duplication or copying, of the C2CPRO Construction Management Trade Contract Agreement for any other purposes other than use under C2CPROject Flow
5. Creation, without duplication or copying, of the C2CPRO Joint Security Account for any other purposes other than use under C2CPROject Flow
6. The Payment software associated with the payments from the Joint Security Account
7. The Site Supervision Program
8. Budget Reports
9. Any future software applications claimed by the Licensor to be restricted to the Construction Management Contract Fee payment.
3. The Licensee agrees that the C2CPRO Lite subscription fee limits in the first instance, the access of the Estimating Tender Component of C2CPROject Flow and the Construction Management Business Component engagement. Specifically, the C2CPRO Lite subscription fee does not permit the use of the Software as stated in clause 2.2. which is subject to the application of a Construction Management Contract.
C2CPROject Flow Subscription Fee
4. The Licensee must pay to the Licensor the C2CPROject Flow subscription fee in accordance with Item 5 Schedule 1.
5. The Licensee must pay to the Licensor the C2CPRO Lite subscription fee in accordance with Item 4 Schedule 1.
Construction Management Contract Fee
6. The Licensee must, upon the payment of the deposit by the Customer at signing of contract, immediately invoice the customer for the first payment of the Construction Management Contract Fee, to be released from the Joint Security Account.
2. In relationship to the payment as stated in 2.2 this payment is to be received by Licensor from the Joint Security Account upon payment of the deposit by the Customer
Statements
7. Within 5 Business Days after the notice of a Construction Contract being signed, the Licensor will issue an invoice to the Licensee detailing the amount of the Construction Management Contract Fee Payment and how it was calculated (Construction Management Contract Fee Statement).
8. The Licensee has 5 Business days from the date of receiving the Construction Management Contract Fee Statement to notify the Licensor of any disputed amount on the Construction Management Contract Fee Statement. This notification must:
1. be a written notice.
2. clearly state what is disputed; and
3. specify both the undisputed and disputed amounts comprising the Construction Management Contract Fee Payment.
9. If the Licensor receives written notification from the Licensee in accordance with clause 2.8, it may only receive the undisputed amount on the Payment Date. The disputed amount will become payable on the latter of, the Payment Date or the date the dispute is resolved in accordance with clauses 2.10 to 2.17.
Data Entry and Verification
10. The Licensee must, at the time of signing each individual contract, enter all data into the C2CPROject Flow to enable the Construction Management Contract Fee Payment to be calculated.
11. Prior to the Commencement Date, the Licensee must provide a written authority to the Licensor, authorising the Licensor or its agents to obtain statements detailing the Licensee's insurance policies (Insurance Policy Statement) from the Licensee's insurer/s upon the Licensor's request. The Insurance Policy Statement shall only be used by the Licensor to verify the data entered into the Database by the Licensee and to confirm that the Construction Management Contract Fee Payment is correct.
12. If there is a discrepancy between the data entered into the Database and the Insurance Policy Statement, the Construction Management Contract Fee will be calculated in accordance with the higher amount.
13. Any offering of sample pricelist(s) components provided by C2CPRO are to be used as a guide only and is up to the Licensee to verify the currency and accuracy of such information; for clarification, the Licencee is not restricted from copying the sample and creating their own pricelist(s).
Disputed Construction Management Contract Fee Payments
14. If the Licensee notifies the Licensor of a dispute concerning the Construction Management Contract Fee Payment in accordance with clause 2.8, the Licensor may verify the amount stated in the Software Usage Fee Statement by:
1. checking the relevant data amount against the corresponding amount stated in the Insurance Policy Statement; or
2. review of the signed Building Contract between the Licensee and each third parties, entered into during the month in question; and/or
3. obtaining an independent valuation to be conducted by a quantity surveyor and comparing this value to the relevant data amount. The quantity surveyor is to be appointed by the Licensor in its sole discretion.
15. The cost of the independent valuation conducted in accordance with clause 2.14.3 will be borne by the Licensor, unless the independent valuation increases the Construction Management Contract Fee in relation to the disputed amount by more than 5%. If the Construction Management Contract Fee in relation to the disputed amount increases by more than 5%, then the Licensee must pay the cost of the independent valuation conducted in accordance with clause 2.14.3.
16. If the Licensor verifies the amount in accordance with clause 2.14, then it may elect (at its sole discretion), to calculate the Construction Management Contract Fee in relation to the disputed amount by using either:
1. the corresponding amount stated in the Insurance Policy Statement; or
2. the corresponding amount stated in the signed Building Contract between the Licensee and each third parties entered into during the month in question; and/or
3. the value obtained from the independent valuation conducted by a quantity surveyor.
17. If the Licensor calculates the Construction Management Contract Fee for the disputed amount in accordance with clause 2.16, the Licensee must pay this amount immediately.
Record Keeping by the Licensee
18. The Licensee must keep separate records of all transactions conducted using the C2CPROject Flow for a period of 7 years from the date of the transaction.
19. The Licensee must allow the Licensor or its agent to inspect and copy the following Information on reasonable notice:
1. The address of each site on which works are conducted;
2. The start and finish date of each project;
3. The value of works, including any variations; and
4. The name of the owner of the works.
Interest on overdue amounts
20. The Licensee must pay interest on any amount that the Licensee owes in relation to this Licence but fails to pay on time. The interest accrues daily, from the date the amount should have been paid until the date it is paid. If the interest is not paid, it is immediately capitalised, and interest becomes payable on it. The rate of interest is 12% per annum calculated daily.
3. Conditions for use of the Trademark(s) and or C2CPROject Flow Information
Licensor’s specifications and quality standards
1. The Licensee is under no obligation to promote and or use any trademarks controlled by the Licensor, for the purposes of the Licensee's business.
2. The Licensee must make sure that its use of the Trademarks pertaining to the C2CPROject Flow meets any reasonable specifications and quality standards that are notified to the Licensee in writing by the Licensor from time to time.
3. The Licensee must receive written consent from the Licensor to use the Trademark(s) for any use of the Trademark that has not been previously approved, in writing, by the Licensor.
4. The Licensee must receive written consent from the Licensor to use any reference to the C2CPROject Flow within the Licensee's business promotion, statements or advertising, other than the pro-forma Information supplied by the Licensor relating to the C2CPROject Flow information for use by the Licensee.
5. For the purposes of this agreement, an email or other electronic communication from the Licensor permitting the use of the Trademark by the Licensee will constitute written consent.
Licensee not agent of
6. This agreement does not make the Licensee the agent of the Licensor. The Licensee must not do anything which could be regarded as representing that it is the Licensor's agent.
4. Protection of the Trademark(s) and Intellectual Property of the C2CPROject Flow and Indemnity
Licensee must not challenge the Trademark(s) Patent(s) or the Intellectual Property of the C2CPROject Flow
1. The Licensee must not:
1. do anything to challenge, or support a challenge of, the Licensor's ownership of the Trademark(s), Patent(s); or
2. apply, or support an application, for any alteration to the Australian Trademarks Register in relation to the Trade Mark without prior written consent from the Licensor.
3. do anything to challenge, or support a challenge of, the ultimate ownership of the rights of the Intellectual Property of the C2CPROject Flow
Indemnity
2. The Licensee must continually indemnify the Licensor and parties noted in 4.2.1 and 4.2.2, against any claim or proceeding that is made or commenced, and any liability, loss, damage or expense (including legal costs on a full indemnity basis) the Licensor suffers or incurs arising from the Licensee's use of the C2CPROject Flow including but not limited to;
1. The use of any estimating services from the C2C group or external estimating services.
2. Any information provided from third parties in the delivery of the C2CPROject Flow.
3. Any Financial services or advice offered by C2CPRO in regard to the success, operations, or outcomes of the Licensee's use of C2CPROject Flow.
4. The use of any sample pricelist(s) as provided by C2CPRO for the use of Xplorer, Discovery and Master Cost Assembly under the terms of clause 2.13.
Licensee’s duties and rights in relation to infringement
3. The Licensee must take reasonable care to detect any actual or threatened infringement of the Trademark(s), Patent(s) or any other unauthorised use of the Trademark and Patents.
4. The Licensee must immediately report any suspected infringement or other unauthorised use of the Trademark(s) or Patent(s to) the Licensor.
5. The Licensee must not take any steps to prevent the Trademark(s) or Patent(s) being infringed or take any action in respect of an apparent infringement or other unauthorised use of the Trademark, without the Licensor's written consent.
6. Any legal proceedings commenced by the Licensee, on behalf of the Licensor, in accordance with clause 4.5 is solely at the Licensee's expense unless otherwise agreed to in writing between the parties.
Licensee’s duty to co-operate with
7. The Licensee must do anything the Licensor reasonably requires to enable the Licensor to decide whether to take action in respect of an actual or threatened infringement or other unauthorised use of the Trademarks(s) or Patent(s). The Licensor is not in any circumstances required to act. However, if the Licensor decides to take action, the Licensee must do everything the Licensor reasonably requires to assist it in relation to that action.
Effect of proceedings on this agreement
8. The outcome of any legal proceedings in relation to an infringement of the Trademark(s) or Patent(s) will not affect this agreement or the rights and obligations it creates.
No sub-license or assignment without ’s consent
9. The Licensee may not assign any of the Licensee's rights under this agreement, or sub-license them to anyone, without the Licensor's written consent.
5. Confidential Information
Confidentiality
1. Where the Licensee receives Confidential Information, the Licensee must, subject to the terms of this Agreement, comply with the following obligations at all times:
1. Keep the Confidential Information secret and preserve its confidential nature.
2. Not use the Confidential Information for any purpose other than a purpose permitted by this agreement.
3. Not disclose or permit the disclosure of the Confidential Information to any person except as permitted under clause 5.1.2.
4. Only copy or reproduce Confidential Information for the purposes of this Agreement or with the Licensor's written consent.
5. Establish and maintain appropriate security measures to protect the Confidential Information against unauthorised access, use or disclosure.
6. Immediately notify the Licensor of any unauthorised access to use or disclosure of the Confidential Information.
7. Comply with any direction from the Licensor in relation to the protection of the Confidential Information.
8. Not reverse engineer, decompile or disassemble any Confidential Information or Intellectual Property.
Further permitted use and disclosure
2. This Agreement does not prohibit the disclosure of Confidential Information by the Licensee in the following circumstances:
1. The Licensor has consented in writing to the disclosure. The consent may be subject to the condition that the person to whom the disclosure is to be made, enter into a separate confidentiality agreement with the Licensor.
2. The disclosure is specifically contemplated and permitted by this Agreement.
3. The disclosure is to the Licensee's professional advisers, financial institutions, mediators, experts to the extent they need to know the Confidential Information to perform a function in connection with this agreement. The Licensee must ensure that its employees comply with the terms of this clause.
4. The disclosure is required by a court, a binding directive of a governmental or administrative authority or to comply with any applicable law.
5. The disclosure is required by virtue of the law or regulations that govern a relevant stock exchange or a stock exchange on which the party's shares (or that of its associates) are listed.
Compliance and undertakings
3. The Licensee must ensure that its employees are made aware that the Confidential Information must be kept confidential and that they must not do, or fail to do anything, which if done or not done by the Licensee, would amount to a breach of the Licensee's obligations under this clause 5.
4. The Licensor may at any time require the Licensee's employees to give written undertakings in a form prepared by us relating to the non-disclosure of the Confidential Information. The Licensee must promptly arrange for all such undertakings to be delivered to the Licensor prior to the time the Licensee's employees are given access to the Confidential Information.
Notification of unauthorised use
5. If the Licensee becomes aware of any unauthorised access to, use or disclosure of Confidential Information, or any suspected or possible breach of the obligations under this clause 5, they must immediately notify the Licensor.
Return of Confidential Information
6. The Confidential Information remains the Licensor's property at all times.
7. The Licensee must return to the Licensor, immediately on demand, or upon the termination or ending of this Agreement, any material containing Confidential Information in the Licensee's possession, power or control, including any material created or generated by the Licensee.
8. The Licensee must not retain copies of any Confidential Information in any form.
Equitable remedies
9. The Licensee acknowledges that damages may not be an adequate remedy for any breach of the confidentiality obligations in this Agreement.
10. The Licensee consents to the granting of specific performance or any injunctive relief sought by the Licensor as a remedy for any breach or threatened breach by the Licensee.
11. The Licensee acknowledges that the Licensor may seek specific performance or an injunctive remedy in addition to any other remedies available to us.
Obligations to continue after Agreement ends
12. All obligations of confidence set out in this Agreement continue in full force and effect after this Agreement ends.
6. Renewal of the Licence
1. The Licensee has an option to renew the Licence subject to the conditions set out in this clause.
Conditions for renewal of the Licence
2. To renew the Licence for the Renewal Term:
1. The Licensor must give the Licensee written notice to renew this Licence at least 1 month before the Expiry Date;
2. the Licensee must pay to the Licensor the Renewal Fee (if applicable) when the Licensee exercises its option to renew the Licence under clause 6.2.1;
3. the Licensee must not be in breach of this agreement;
4. the Licensee must pay all money due by the Licensee to the Licensor on or prior to the date the Licensee renew the Licence and on the Expiry Date;
5. the Licensee must sign and return to the Licensor the Renewal Documents on or prior to the Expiry Date or within 14 days of receipt by the Licensee of the Renewal Documents;
Renewal Documents
3. The Renewal Documents may be on different terms and conditions to this agreement, including increased payments and fees. On request by the Licensee, at any time in the last year of this agreement, the Licensor will advise the Licensee, in writing, any proposed variations of this agreement, including increased payments and Fees, so that the Licensee can make an informed decision about whether or not to renew the agreement.
Last right to renew
4. If the Licensee fails to comply with any of the conditions under clause 6.2 the Licensor will not renew the Licence.
Renewal Fee
5. The Licensor's acceptance of the Renewal Fee (if applicable) does not require the Licensor to renew the Licence if the conditions for renewal stated in this agreement have not been satisfied.
6. If the Licensee has paid the Renewal Fee (if applicable) and the Licensor does not agree to renew the License, the Licensor will refund to the Licensee the Renewal Fee (less any reasonable costs incurred by the Licensor in connection with the proposed renewal of this license).
7. Termination
Ending of agreement
1. The Licensor may end this agreement immediately, by giving written notice to the Licensee, if any of the following happens:
1. The Licensee breaches this agreement, and the breach cannot be remedied.
2. An Adverse Event occurs in relation to the Licensee.
Ending of agreement if notice not complied with
2. If the Licensee breaches this agreement and the breach is capable of being remedied, the Licensor must give the Licensee a notice specifying the breach and requiring the Licensee to remedy it. If the Licensee doesn't do so within 14 days of receiving such notice, the Licensor may terminate the Licence immediately.
Suspension of access to the C2CPROject Flow and Database
3. If the Licensee breaches this agreement and the breach is not capable of being remedied, the Licensor may immediately suspend the Licensee's use of the Database.
4. If the Licensor decides to suspend the Licensee's use of the C2CPROject Flow or the Database, it must issue a notice to the Licensee within two Business Days of effecting the suspension detailing the breach and how it may be remedied.
Duties when Licence ends
5. When this agreement ends, all rights in the Intellectual Property revert to the Licensor.
6. When this agreement ends, the Licensee must immediately do each of the following:
1. Cease using the Trademark(s) Patent(s) rights and the Database;
2. Remove any reference to it or to the Licence from any published material;
3. Deliver to the Licensor, or destroy, all items or packaging bearing the Trademark, and any other material relating to the Trademark or its use;
4. Deliver to the Licensor, or destroy, all copies (whatever their form) of any Confidential Information; and
5. Satisfy any outstanding debts to the Licensor, including any Construction Management Contract Fee Payments.
7. When this agreement ends, the Licensor must:
1. provide the Licensee with a paper or un-editable electronic copy, of all of the Licensee's data that has been entered into the Database during the term of this agreement;
2. permanently delete the data described in clause 7.7.1 from the Database; and
3. issue a notice to the Licensee confirming that this agreement has been terminated and that the Licensee is no longer permitted to use the Trademark or the Database.
Surviving Clauses
8. The following clauses survive termination of this agreement:
1. Clause 1.12
2. Clauses 2.18 to 2.20;
3. Clause 4.1;
4. Clause 4.2
5. Clauses 4.5 to 4.6
6. Clause 4.9
8. Disputes
Dealing with a dispute
1. If a dispute arises concerning the amount of a Construction Management Contract Fee Payment, it is to be dealt with in accordance with clauses 2.14 to 2.17.
2. If a dispute arises that does not concern the amount of a Software Usage Fee Payment, it is to be dealt with in accordance with clauses 8.3 to 8.7.
Giving notice of a dispute
3. Subject to clauses 8.1 and 8.2, if a dispute arises between the parties to this agreement, a party may raise the matter in writing with the other party. They must set out all the following:
1. The nature of the dispute.
2. What outcome they want.
3. What action they think will settle the dispute.
4. The parties must then try to agree on how to resolve the dispute.
Refence to mediation
5. If the parties cannot agree, within 14 Business Days after the notice is given on how to resolve the dispute, either party may refer the matter to an agreed mediator. If the parties cannot agree on a mediator, either party may write to and ask the appropriate President of the relevant state Law Society to appoint a mediator.
Mediation
6. The agreed mediator or the mediator appointed by President of the relevant state Law Society will decide the time for mediation and tell the President of the relevant state Law Society, within 20 Business Days after being appointed, that mediation has commenced. The mediation must occur in the relevant state capital.
7. The parties agree to do the following:
1. Attend the mediation and try and resolve the dispute.
2. Unless they agree otherwise, share equally the costs of mediation.
3. Pay for their own costs in attending mediation.
4. The procedures set out in this clause do not affect the rights of a party to take legal proceedings in respect of a dispute.
8. If the Licensee has not made itself available for mediation and has not attended within 20 Business Days after the mediator has been appointed, or such other time as agreed by the parties in writing, this non-action by the Licensee will be treated as a breach of this agreement and clause 7 of this agreement will apply.
9. Liability
Licensor’s warranty
1. The Licensor warrants the following to the Licensee:
1. The Licensor has the right, including a right to sub-license, to use and exploit the Intellectual Property within Australia as contemplated by the terms of this Agreement; and
2. The Licensor's ability to utilize such right (as referred to in clause 9.1.1 above) will extend for the duration of the Term and the Renewal Terms (if exercised).
Liability for costs
2. Each party will bear their own costs in relation to negotiating or entering into this agreement and any related agreement.
Renewal of Trademark
3. The Licensor must pay the Trademark Fee to the Australian Trademarks Office before it is due.
4. If the Licensor does not perform its obligation under clause 9.3, it must take all reasonable measures to revive the registration of the Trademark.
Liability for duty, taxes and charges
5. The Licensee must pay the Licensor any duty, tax or charge that is payable in relation to this agreement or the transactions which it records.
Payment of GST
6. A party must pay GST on a Taxable Supply made to it under this agreement, in addition to any consideration (excluding GST) that is payable for that Taxable Supply. It must do so at the same time and in the same way as it is required to pay the consideration for the Taxable Supply.
Tax Invoices
7. A party making a Taxable Supply to another party under this agreement must issue a tax invoice to the other party, setting out the amount of the GST payable by that other party. The party must do so at the time the other party is required to pay the consideration for the Taxable Supply.
ABN Registration
8. The supplier of a Taxable Supply warrants that it is registered or will be registered for Australian Business Number and GST purposes at each time a Taxable Supply is made. The supplier must continually indemnify the other party for any loss it suffers because of the supplier not being registered for Australian Business Number and GST purposes. On request by the other party, the supplier must produce evidence that it is registered.
Co-operation in relation to GST obligations
9. Each party must do everything reasonable to assist each other party to comply with its GST obligations in relation to this agreement.
10. Notices
How notice is given
1. Subject to clause 10.2, a party may only give another party a notice under this agreement in one of the following ways:
1. By delivering it, or posting it to that party, at the address stated in Item 7 of Schedule 1
2. By emailing it that party at the email address stated in Item 7 of Schedule 1.
2. If a party gives another party 3 Business Days written notice of a change of that, or a subsequent, address or email, a notice may only be given by that other party at the latest address or to the latest fax number.
Time notice is given
3. A notice that is delivered is to be treated as given when it is left at the relevant address. A notice sent by post is to be treated as given 2 Business Days after the notice was posted. A notice sent by email is treated as given as soon as the sender receives a delivery confirmation email. If a notice is delivered, a delivery confirmation email is received, after the normal hours of the party to whom it is sent, the notice is to be treated as having been given at the beginning of the next Business Day.
11. Miscellaneous
Assignments and transfers
1. This agreement continues for the benefit of and binds each party and its successors in title including a third party to whom a party's rights and obligations are assigned or transferred in accordance with this agreement.
2. The Licensee must not assign or transfer any of its rights or obligations under this agreement without the prior written consent of the Licensor. The consent of the Licensor may be granted or withheld in its absolute discretion and with any conditions that the Licensor seeks to impose.
3. The Licensor may assign any of its rights under this agreement without the consent of the Licensee.
No agency, partnership, or other relationship
4. Except as expressly provided in this agreement, no party is an agent, representative, trustee, employee or partner of any other party by virtue of this agreement and no party may represent itself as such in any circumstances.
Approvals and consents
5. Unless this agreement expressly provides otherwise, a party may give or withhold an approval or consent in that party's absolute discretion and subject to any conditions determined by the party. A party is not obliged to give its reasons for giving or withholding a consent or approval or for giving a consent or approval subject to conditions.
Entire Agreement
6. This agreement contains everything the parties have agreed in relation to the subject matter. No party can rely on an earlier written document, or anything said or done by or on behalf of another party before this agreement was executed.
Execution of separate agreements
7. This agreement may be executed by each party either executing this agreement or a copy of this agreement which contains the same terms, and this agreement may consist of any number of copies.
8. If more than one copy of this agreement is executed by the parties:
1. The agreement will take effect when the last party signs this agreement.
2. After exchange, each executed copy of this agreement will be an original and all the copies together will constitute the same agreement.
Further Acts
9. Each party must at its own expense promptly execute all agreements and do or use reasonable endeavours to cause a third party to do all things that another party from time to time may reasonably request to give effect to, perfect or complete this agreement and all transactions incidental to it.
Governing Law
10. This agreement is governed by the law of the relevant state this agreement is executed in. The parties submit to the exclusive jurisdiction of its courts and courts of appeal from them. The parties will not object to the exercise of jurisdiction by those courts on any basis.
Severability
11. If any clause or part of a clause is illegal, unenforceable, or invalid, that clause or part is to be treated as removed from this agreement, but the rest of this agreement is not affected.
Waiver
12. The fact that a party fails to do, or delays in doing, something that party is entitled to do under this agreement, does not amount to a waiver of that party's right to do it. A waiver by a party is only effective if it is in writing.
13. A written waiver by a party is only effective in relation to the obligation or breach in respect of which it is given. It is not to be taken as an implied waiver of any other obligation or breach, or as an implied waiver of that obligation or breach in relation to any other occasion.
Good Faith
14. The parties always agree to act in good faith towards each other in respect of all dealings or matters under, or in connection with this agreement.
Variation
15. No variation of this agreement will be of any force or effect unless it is in writing and signed by each party to this agreement.
12. Definitions
12. In this agreement the following definitions apply:
Adverse Event in relation to a particular Person, means any of the following:
a. something that reasonably indicates that there is a significant risk that the Person is or will become unable to pay debts as they fall due. This includes execution or distress being levied against any income or assets of the Person; a step being taken to make the Person bankrupt; a meeting of the Person's creditors being called or held; and the Person entering into any type of agreement, composition, or arrangement with, or assignment for the benefit of, all or any class of its creditors.
b. a step being taken to have a receiver, receiver and manager, provisional liquidator, liquidator, or administrator appointed to that Person or any of its assets.
c. the Person ceasing, or indicating that it is about to cease, carrying on business.
Business Day means a day (except Saturday and Sunday) on which banks are open for general banking business in Queensland.
C2CPRO Domestic Construction Management Contract means the Construction Management Contract populated within the C2CPROject Flow Module
C2CPRO Lite means a limited access version of C2CPROject Flow, limited to Administration, Xplorer, Discovery, Master Cost Assembly and Shopping List components
C2CPRO Joint Security Account means the setup and operations as referred to under the C2CPRO omestic Construction Management Contract and associated C2CPRO Trade Contract Agreements
C2C Project Flow means a process provided under the C2CPROject Flow to form compliance of the provisions for the Licensee of clauses 1.7 to 1.10
C2C Project Flow chart means the image chart describing the operations and flow of the activities from project concept to its completion.
C2CPROject Flow means all programs - marketing materials - supporting documentation relating to the "C2CPRO" business program specifically licensed by LICENSOR.
Commencement Date means the date the last party executes this agreement.
Construction Cost means the total amount comprising the services under the construction management contract.
Construction Management Business Component means the part of the C2CPROject Flow that relates to the creation of the business model and its benefits to parties as from time to time be promoted in general marketing replacing the traditional business contracting method of builders.
Construction Management Contract Fee means the amount set out in Item 6 of Schedule 1.
Confidential Information includes Information that the Licensor reasonably regards as confidential, or that it gives the Licensee written notice it regards as confidential, and that the Licensee has or has access to at any time in relation to any of the following:
a. the Licensor's business or that of a Related Entity.
b. actual or prospective customers, suppliers, or competitors of the Licensor or of a related body corporate.
c. the Licensor's intellectual property or other property.
However, it does not include Information which is in the public domain, unless it came into the public domain by a breach of confidentiality.
Customer means the Owner of the Property that the Licensee has entered a Construction Management Contract with.
Database means a structured collection of records and entities where customers and customer interactions can be entered, stored and accessed. This does not include any or all the workflow structures, processes and attributes which assist and/or assisted in capturing, collecting, managing and administering any customer records, entities, Information or interactions.
Expiry Date means the date set out in Item 11 of Schedule 1.
GST means tax levied under A New Tax System (Goods and Services Tax) Act 1999.
Intellectual Property means the Trademark(s) Patent(s) and the Database.
Licence means the Licence granted in clause 1 of this agreement
Person includes a partnership, trust or other entity which is not a legal person.
Related Entity in relation to a company or Person, means a company or Person that would be regarded as related to the relevant party under the Corporations Act 2001, but also includes a company or Person that would be regarded as an associate or related company under generally accepted accounting principles.
Renewal Term means the period set out in Item 9 of Schedule 1.
Renewal Fee means the Fee set out in Item 10 of Schedule 1.
Scope of Works means anything that affects the value of the Construction Management Fee.
Taxable Supply means what it means under A New Tax System (Goods and Services Tax) Act 1999.
Term means the period set out in Item 8 Schedule 1
Trademark means the trademarks described and set out in Item 3 of Schedule 1.