Term and Conditions
1 Services and contracts
1.1 All Services are provided by Kapcher subject to Quotations and these Terms.
1.2 Each Quotation is subject to these Terms and any special conditions agreed by Kapcher in writing. Any previous dealings or agreed arrangements between Kapcher and the Customer, and any terms and conditions of purchase submitted by the Customer, are specifically excluded.
1.3 Kapcher may vary these Terms by providing the Customer with replacement terms. If after receiving replacement terms, the Customer accepts any Services or makes payment for any Services, the Customer will be deemed to have accepted the replacement terms.
2 Quotations
2.1 A contract for the supply of Services set out in a Quotation sent by Kapcher to the Customer is made on the earlier of: (i) the Customer confirming in writing to Kapcher that the Quotation is accepted, and Kapcher confirming receipt of such acceptance; (ii) Kapcher commencing to provide any of the Services set out in a Quotation after the Customer has confirmed to Kapcher that the Quotation is accepted; and (iii) Kapcher commencing to provide any of the Services set out in a Quotation and the Customer accepting any of those Services
2.2 Any changes to a Quotation after after it is sent by Kapcher to the Customer will be at the sole discretion of Kapcher, and on terms (including price) determined by Kapcher.
2.3 A Quotation expires on the expiry date specified in the Quotation. If no expiry date is specified, a Quotation expires 14 days after it is dated.
3 Pricing
3.1 Subject to clauses 3.2 and 3.3 below, the fees for any Services to be supplied to the Customer will be as set out in the corresponding Quotation for those Services provided by Kapcher to the Customer (Fees).
3.2 Kapcher may, acting reasonably, change the Fees in response to any cost in relation to provision of the Services that could not reasonably have been known by Kapcher at the time a Quotation was provided to the Customer.
3.3 Unless otherwise advised by Kapcher in writing, all prices for Services are exclusive of all applicable taxes and charges. The Customer will be liable for all excise, sales, GST or any other tax, charge or government impost upon the Services or any part of the Services, or upon the manufacture, use, sale or delivery of the Services in addition to the purchase price. Where Services are subject to GST, the Customer must pay GST at the same time as payment for Services is made.
3.4 If in relation to any payment due by the Customer to Kapcher under or in relation these Terms, the Customer is required by law to make any deduction, withholding or payment for or on account of any Tax (Withholding), the Customer will pay the Kapcher, when the payment is due, whatever additional amount is needed so that the amount that Kapcher actually receives, after taking into account the Withholding, is the amount Kapcher would have been entitled to receive if no Withholding had been made.
4 Payment and financial position
4.1 Unless Kapcher agrees in writing to provide credit terms to the Customer, all Services must, at Kapcher’s option, either be prepaid, or paid for on a cash on delivery basis.
4.2 If there is a material adverse change to the Customer’s financial position or otherwise, Kapcher may without any liability to the Customer, cancel the provision of any Services, change any payment terms, and/or require full or partial payment or adequate assurance of the Customer’s compliance with these Terms.
5 Credit terms
5.1 This section 5 applies if Kapcher agrees to supply Services to the Customer on credit terms (“Credit Account”). Payment for any Services supplied under a Credit Account will be payable by the Customer in accordance with any payment due dates determined by Kapcher. Kapcher will not be liable for any refusal to supply or continue to supply Services on credit.
5.2 The Customer authorises Kapcher to make enquiries to satisfy Kapcher as to the creditworthiness of the Customer. The Customer will, upon request, provide signed authorities enabling Kapcher to make enquiries of the Customer’s banks, other lenders and credit providers, and to make enquiries of mercantile agencies and credit reporting agencies.
5.3 To qualify for a Credit Account, Kapcher may place minimum thresholds on the value of Services to be purchased by the Customer.
5.4 Kapcher may set the maximum value of Services to be supplied to the Customer on credit (“Credit Limit”). Kapcher may review and change the Credit Limit at any time. The balance of unpaid Services on the Credit Account must not exceed the Credit Limit. Upon request from Kapcher, the Customer agrees to immediately pay for any Services supplied by Kapcher on credit in excess of the Credit Limit.
5.5 The Customer will be liable for all Services supplied under its Credit Account. Kapcher will not be under any obligation to confirm the authority of any person requesting any Services under the Credit Account, or to make any other similar or related enquiries. The Customer will be solely responsible for any unauthorised use of its Credit Account.
5.6 If the person who applies for a Credit Account on behalf of the Customer (“Applicant”) is a sole trader, partner, trustee, director or guarantor, the Applicant and the Customer agree that Kapcher may (to the extent permitted by law): (i) exchange credit information about the Applicant with other credit providers; (ii) obtain a consumer credit report about the Applicant from a credit reporting body; (iii) provide any personal information of the Applicant permitted by Part IIIA of the Privacy Act 1988 (the “Act”) to a credit reporting body; and (iv) give credit information about the Applicant to a person permitted under Part IIIA of the Act for the purposes of considering whether to act as guarantor, or to a guarantor.
5.7 Kapcher may in its discretion suspend or terminate any contract formed under or in relation to these Terms if, in Kapcher’s opinion, the credit of the Customer becomes impaired, until Kapcher receives payment in full or security to Kapcher’s satisfaction for Services provided, and Kapcher is satisfied as to the Customer’s future credit worthiness.
6 Australian Consumer Law
6.1 This section 6 only applies if the Customer is a “Consumer” as defined under the Australian Consumer Law.
6.2 If the Customer is a “Consumer” as defined under the Australian Consumer Law, then despite any other provision in these Terms:
(a) Our services come with guarantees that cannot be excluded under the Australian Consumer Law. For major failures with the service, you are entitled:
- to cancel your service contract with us; and
- to a refund for the unused portion, or to compensation for its reduced value
(b) You are also entitled to be compensated for any other reasonably foreseeable loss or damage.
(c) If the failure does not amount to a major failure, you are entitled to have problems with the service rectified in a reasonable time and, if this is not done, to cancel your contract and obtain a refund for the unused portion of the contract.
7 Warranties and claims
7.1 Kapcher warrants that the Services to be provided to the Customer will be provided with reasonable care and skill.
7.2 A defect or claim in respect of any Services supplied under a given Quotation will not entitle the Customer to reject delivery or claim any other remedy in relation to other Services forming part of that Quotation or any other Quotation.
7.3 The Customer warrants to Kapcher that all trademarks, logos, data, electronic files, photographs, plans, diagrams, specifications, drawings, technical documents and any other information or documents provided by the Customer to Kapcher in relation to the Services (Customer Material) are accurate, complete and not misleading in any respect, and that Kapcher’s use of any of the Customer Material will not infringe any third party Intellectual Property Rights or any other right. The Customer indemnifies Kapcher against any Loss incurred by Kapcher because of or in relation to a breach of the warranty set out in this clause.
8 Customer acknowledgements and obligations
8.1 The Customer acknowledges that to be able to access and otherwise use any of the Services, the Customer may be required to purchase licences and/or subscriptions to third-party software and technology products and platforms. The cost of any such licence or subscription will be at the Customer’s cost, and is not included in the Fees.
8.2 The Customer is responsible for obtaining all permits, authorisations and other permissions required in relation to any Sites for which any Services are to be provided.
8.3 Any description provided by Kapcher in relation to any Services (including in any Technical Material) is provided solely for identifying the Services and does not constitute a warranty, representation or sale by description.
9 Breach
9.1 Either party may terminate a contract formed under these Terms if, in relation to that contract, the other party commits a material breach of these Terms and fails to remedy the breach within 28 days of written notice from the non-defaulting party.
9.2 Where the Customer is in breach of any of these Terms or any Credit Account (including by becoming insolvent due to any event in Regulation 7.5.02 of the Corporations Regulations 2001 (Cth) (or any analogous event), or by committing an act of bankruptcy):
(a) Kapcher may refuse to provide further Services to the Customer until such time as the Customer has remedied that default; and/or
(b) Kapcher may require that the Customer make immediate payment for all Services provided but unpaid at the time of the breach.
9.3 If the Customer breaches any payment obligations under these Terms or under any Credit Account, then notwithstanding any other rights or remedies under these Terms, the general law or otherwise:
(a) the Customer will pay to Kapcher on demand, interest per annum of 10% on all amounts overdue from the date of default until the date of payment in full, as well as the full cost of recovering the overdue amount, including legal or debt collection costs;
(b) Kapcher may, if the breach is not remedied within 7 days of written notice from Kapcher, terminate or suspend any contract in force between Kapcher and the Customer for the supply of any Services, and withhold provision of any Services to the Customer, whether under these Terms or otherwise; and
(c) the Customer will repay to Kapcher, on demand, any early payment discounts, volume bonuses or incentive payments previously offered by Kapcher.
10 Liability
10.1 These Terms are subject to any statutory rights which cannot be excluded (including under the Australian Consumer Law).
10.2 Each party indemnify and will keep indemnified the other party and each of its officers, employees and agents against any Loss which any such person may incur because of:
(a) misuse of any of the Services by the Customer;
(b) any material breach of these Terms or any Credit Account by the Customer; and
(c) the negligence, wrongful act or omission, breach of statutory duty, breach of contract or willful default of a party or its officers, employees, agents or contractors.
10.3 Except for any express warranties in these Terms, all express or implied warranties, conditions, undertakings or similar representations, whether under statute, general law or otherwise, are expressly excluded to the extent permitted by law.
10.4 Kapcher’s liability for any Loss relating to the Services is limited (to the full extent permitted by law) to any of the following as determined by Kapcher in its sole discretion:
(a) repairing or replacing the Services the subject of the Loss; or
(b) the cost of repairing or replacing the Services the subject of the Loss (or acquiring equivalent goods).
10.5 Kapcher will not be liable to the Customer:
(a) for any delay in delivering any Services due to any matter beyond the reasonable control of Kapcher;
(b) in relation to any diagrams, drawings or other designs prepared by or on behalf of the Customer, and which are based on or incorporate any of the Services; and
(c) for refusing to supply or to continue to supply Services on credit, or for withdrawal of or any change to any credit terms offered by Kapcher.
10.6 Neither party will be liable to the other for any business interruption, loss of revenue, income, business, profits, opportunity or any other indirect or consequential loss arising under or in relation to these Terms and/or any Services.
10.7 Notwithstanding anything else contained in these Terms, the parties’ liability to each other under or in relation to these Terms for any Loss in connection with the supply of any Services, will not exceed the price paid for the Services the subject of the Loss. However this limitation of liability will not apply in relation to breach of any Intellectual Property Rights, or any breach of clauses 7.3, 11 or 12.
11 Intellectual property and use of Services
11.1 Kapcher retains the Intellectual Property Rights in all Services, Technical Material and in Kapcher’s brand, logos and trade marks (Product IP). The Customer may only use the Product IP as approved by Kapcher.
11.2 The Customer must provide Kapcher (at Kapcher’s expense, unless due to Customer’s breach, in which case at Customer’s expense) with reasonable assistance in identifying, prosecuting and defending any claim in relation to any of the Product IP.
11.3 The Customer must not use any of the Product IP in a manner which, in the reasonable opinion of Kapcher, may damage or be likely to adversely affect any of the Product IP, or omit to do anything reasonably requested by Kapcher for the purposes of protecting any of the Product IP.
11.4 The Customer will ensure that that its employees, contractors, agents and other representatives comply with the provisions of clauses 11.1 to 11.3.
11.5 The Customer grants to Kapcher a non-exclusive, irrevocable, royalty-free, worldwide licence to use the Customer Materials for the purposes of:
(a) providing Services to the Customer; and
(b) creating and using case studies, promotional materials and other related materials in relation to Kapcher and its business.
11.6 The Customer acknowledges that any Services provided by Kapcher to the Customer are provided for use by the Customer. Unless Kapcher consents in writing, the Customer must not sub-licence or otherwise grant access to any of the Services to any party other than the Customer.
12 Confidentiality
12.1 Each party agrees that it must:
(a) keep confidential all Confidential Information of the other party accessed at any time;
(b) not disclose, reproduce or use Confidential Information of the other party; and
(c) not permit or allow the disclosure, reproduction or use of Confidential Information of the other party by any person having access to any such Confidential Information,
except as required by law, and except to each of their respective service providers, agents and representatives, provided that such service providers, agents and representatives agree to confidentiality measures that are at least as stringent as under these Terms.
13 General
13.1 Each provision of these Terms is deemed to be separate and severable from the other provisions. To the extent any provision is invalid or unenforceable in any jurisdiction, this will not (a) invalidate the remaining provisions; or (b) affect the validity or enforcement of that provision in any other jurisdiction.
13.2 With the exception of any Quotation, these Terms will, to the extent of any inconsistency, override any other document between Kapcher and the Customer.
13.3 Kapcher may set off any amount owed by the Customer to Kapcher against any amount owed or may become owing, by Kapcher to the Customer. This clause overrides any other document or agreement to the contrary.
13.4 The failure of a party at any time to require performance of any obligation under these Terms is not a waiver of that party’s right to assert any remedy for breach of that obligation and at any other time to require performance of that or any other obligation under these Terms, unless written notice to that effect is given.
13.5 Kapcher may sub-contract and/or assign any or all of its rights and/or obligations under these Terms and any contract formed under these Terms (including a right to any payment) to any person without notice or approval from the Customer, provided that the rights of the Customer under these Terms are not materially adversely affected. Unless Kapcher consents in writing, the Customer may not assign the benefit of, or otherwise create an interest in its rights under these Terms.
13.6 If Kapcher is prevented either directly or indirectly from performing any of its obligations under or in relation to these Terms, including without limitation, making a delivery of the Services or any part of the Services, by reason of Force Majeure it shall be entitled, at its option, by notice to the Customer, either to:
(a) extend the time for delivery of the Services;
(b) terminate the contract for Services the subject of a particular Quotation, or any other Services; or
(c) decline to provide any further Services.
Kapcher will not be liable to the Customer for or in relation to any failure to perform any obligation under these Terms because of a Force Majeure event.
13.7 The following provisions in the Terms will, in relation to any contract made under these Terms, survive the termination or completion of the contract: 3.3, 3.4, 7.3, 9.3(a), 9.3(c), 10, 11, 12 and 13.3.
13.8 These Terms and every contract formed under them are governed by the laws of Victoria, Australia. The parties submit to the non-exclusive jurisdiction of the courts exercising jurisdiction in Victoria, Australia.
14 Interpretation
In these Terms: if a word or phrase is defined its other grammatical forms have corresponding meanings; specifying anything in these Terms after the words ‘include’, ‘including’, ‘for example’, ‘such as’ or similar expressions does not limit what else is included unless there is express wording to the contrary; headings are for convenience only and do not form part of the Terms; no rule of construction will apply to a clause to the disadvantage of a party merely because that party put forward the clause or would otherwise benefit from it; a reference to any legislation includes subordinate legislation under it and includes that legislation and subordinate legislation as modified or replaced; a reference to a document (including these Terms) includes all amendments or supplements to, or replacements or novations of, that document; and, a reference to any obligation includes a warranty or representation and a reference to a failure to comply with an obligation includes a breach of warranty or representation.
15 Definitions
Confidential Information means any confidential information (whether oral, in writing or otherwise) of or concerning the parties and their commercial partners, including but not limited to any pricing or other commercial terms under these Terms, any information that by its nature is confidential, any information which is potentially commercially valuable, any information regarding trade secrets, intellectual property (including know-how), software, discoveries, products, designs, drawings, processes, procedures or methods, and confidential information relating to business or financial affairs, transactions, accounts, projects, financing and management of either party. In addition, confidential information includes any Quotations, proposals, statements of works, and any related correspondence and documents provided by Kapcher to the Customer in relation to any Services.
Credit Account is defined in clause 5.1.
Customer means the person or entity to whom Kapcher provides a Quotation, or who otherwise receives Services, under these Terms.
Customer Material is defined in clause 7.3.
Fees is defined in clause 3.1.
Kapcher means Kapcher Pty Ltd (ACN 633 830 627).
Force Majeure means any event or external factor beyond the reasonable control of Kapcher, including without limitation an act of God, war, fire, pandemic, lockdown, quarantine, strike, lockout, trade or industrial disputes, hacking, government interference, transport delays, accidents, or breakdown of plant, machinery or other equipment.
GST Act means A New Tax System (Services and Services Tax) Act 1999 and GST has the meaning given to that term under the Act.
Intellectual Property Rights means all present and future rights conferred by statute, common law or equity in or in relation to copyright, trade marks, designs, patents, circuit layouts, inventions and confidential information, and other results of intellectual activity in any field whether or not registrable, registered or patentable. These rights include rights in applications to register these rights an all renewals and extensions of these rights.
Loss means any claim, demand, loss, liability damage or expense.
Product IP is defined in clause 11.1.
Quotation means a quotation for Services in writing, provided by Kapcher to the Customer (whether in a document titled “quotation”, by email or otherwise in writing).
Services means any of the following services, in relation to any Sites: 3D laser scanning services and imaging, drone services and imaging, data acquisition services and imaging, inspection services, surveying services and related services and imaging.
Sites means outdoor sites, indoor sites, buildings, infrastructure and other similar or related sites and structures.
Technical Material means all promotional literature, technical documents and other documents and information made available by Kapcher in relation to the Services.
Terms means these terms and conditions, as amended from time to time.
Tax means a tax, levy, duty, charge or deduction, together with any related additional tax, interest, penalty, fine or other charge, calculated by reference to the value of anything supplied, and includes without limitation any value added tax (VAT) or goods and services tax (GST).