Definitions

In the Agreement, unless the context otherwise requires:

Business Day means any day on which banks are open for business in Brisbane, Queensland, excluding 27-31 December.

Business Hours means the hours of 8:30am to 5:30pm (Brisbane time) during a Business Day.

Confidential Information means any information that concerns the business, operations or affairs of the discloser that is disclosed to, or otherwise acquired by the recipient, at any time in connection with the Agreement or the performance of the Services, and which:

• is by its nature confidential;
• is designated by the discloser as confidential; or
• the recipient knows or ought to reasonably know is confidential, but does not include information which:
• is or becomes public knowledge other than by a breach of the Agreement or any other obligation of confidentiality;
• is in the possession of the recipient without restriction in relation to disclosure on or before the date on which it is disclosed to, or acquired by, the recipient; or
• has been independently developed or acquired by the recipient.

Deliverable means a tangible or intangible item that is produced by YANTRA CONSULTING in providing the engag3d service.

Force Majeure Event means an event or cause beyond the reasonable control of the party claiming force majeure including, without limitation, acts or omissions of third party network operators or suppliers, fire, flood, earthquake, elements of nature or acts of God, acts of war, terrorism, riots, civil disorders, rebellions or revolutions, strikes or lockouts.

Government Agency means any government or governmental, semi-governmental, administrative, municipal, fiscal or judicial body, department, commission, authority, tribunal, agency or entity.

GST has the meaning given to that term in the GST Act.

GST Act means the A New Tax System (Goods and Services Tax) Act 1999 (Cth).

Insolvency Event means an event where an administrator, liquidator, receiver, manager and receiver or any other administrator is appointed over the assets of the business of the entity, or if the entity enters into any composition with its creditors.

Intellectual Property Rights means any intellectual or industrial property rights (including a patent, copyright, trade mark, design, rights in relation to Confidential Information, rights in relation to circuit layouts and similar rights, in each case whether or not registered) granted under any Laws anywhere in the world, but excluding any non-assignable moral rights and similar non-assignable personal rights of an author.

Law means:

• the present or future requirements of any statute, regulation, order, rule, subordinate legislation, common law, equity or other document enforceable under any statute, regulation, rule or subordinate legislation, common law or equity; and
• the lawful requirements, directions or instructions of any Government Agency.

Personnel means any of a party’s officers, employees, agents and representatives involved either directly or indirectly in the provision of the Services; and

Services means the services to be provided by YANTRA CONSULTING through the engag3d service.

Sub-Contractor means any person engaged by YANTRA CONSULTING in accordance with clause 15 to perform all or any part of the Services on behalf of YANTRA CONSULTING.

Agreement to perform Services

1. YANTRA CONSULTING agrees to perform the Services in accordance with the terms of the Agreement in consideration for the payment of the Charges by the Customer.
2. The Services will be performed during Business Hours unless mutually agreed by the parties. If any of the Services are required to be performed outside Business Hours, then such Services may incur additional costs which will be advised by YANTRA CONSULTING beforehand.

Charges

Subject to the terms of the Agreement, the Customer must pay the Charges to YANTRA CONSULTING for the provision of the Services or any goods supplied with the Services.

Payment

1. Payment for the services shall be invoiced in accordance with the monthly subscription plan selected by the Customer. Invoices will be sent by YANTRA CONSULTING to an email nominated by the Customer.
2. The Customer must pay the Charges by direct debit to YANTRA CONSULTING.
3. If the Customer does not pay the Charges by the due date, YANTRA CONSULTING may charge the Customer a default charge on the unpaid amount on a daily basis from the due date until payment is made, at the rate of 6% above the Reserve Bank cash rate.
4. If the Customer disputes all or any part of the Invoice, the Customer must pay the undisputed component (if any) and notify YANTRA CONSULTING within 14 days of the date of the Invoice of the basis for disputing the balance.
5. YANTRA CONSULTING will promptly investigate a dispute raised by the Customer pursuant to clause 4.4.
6. If YANTRA CONSULTING resolves that the disputed amount is payable, then the Customer must pay the disputed amount within 30 days of YANTRA CONSULTING notifying the Customer of the decision.

GST

1. Words or expressions used in this clause which are defined in the GST Act have the same meaning in this clause.
2. Any consideration to be paid or provided for a supply made under or in connection with this Agreement, unless specifically described in this Agreement as “GST inclusive”, does not include an amount on account of GST.
3. Despite any other provision in this Agreement, if a party (“Supplier”) makes a supply under or in connection with this Agreement on which GST is imposed to any extent (not being a supply the consideration for which is specifically described in this Agreement as “GST inclusive”):
   • The consideration payable or to be provided for that supply under this Agreement is increased by, and the recipient of the supply (“Recipient”) must also pay to the Supplier, an amount equal to the GST payable by the Supplier on that supply;
   • The amount by which the GST exclusive consideration is increased must be paid to the Supplier by the Recipient at the same time as the GST exclusive consideration is payable or to be provided; and
   • Notwithstanding any other provision of this Agreement, the Recipient is not required to pay any amount unless it has received an Invoice for that taxable supply.
4. If a payment to a party under this Agreement is a reimbursement calculated by reference to a loss, cost or expense incurred by that party, then the payment must be reduced by the amount of any input tax credit to which that party is entitled for that loss, cost or expense. That party is assumed to be entitled to a full input tax credit unless it proves, before the date on which the payment must be made, that its entitlement is otherwise.
5. If, at any time, an adjustment event arises in respect of any supply made by a party under this Agreement, a corresponding adjustment must be made between the parties. Payments to give effect to the adjustment must be made between the parties and the Supplier must issue a valid adjustment note in relation to the adjustment event.

Title and Risk

Title in any goods supplied with the Services passes to the Customer upon receipt of full payment for the goods. The risk in the goods passes upon delivery of the goods to the Customer. For the purpose of this Agreement, “goods” includes the rights to use software. For the avoidance of doubt, nothing in this clause transfers any Intellectual Property Rights in such software or processes and frameworks used by YANTRA CONSULTING in the delivery of the Services.

YANTRA CONSULTING’s obligations

1. YANTRA CONSULTING will use best endeavours to carry out the Services within the timeframe set out on the engag3d website.
2. YANTRA CONSULTING will, and must ensure that its Personnel will, at all times comply with all applicable Laws relating to its obligations under the Agreement and the provision of the Services.

Customer’s obligations

The Customer must:

• provide YANTRA CONSULTING with information, responses, resources, access permissions or material that YANTRA CONSULTING reasonably requires, which must be provided by the Customer in a timely manner in accordance with Statement of Work so as not to cause delay;
• satisfy project requirements and fulfil its responsibilities as set out in the Statement of Work;
• ensure that all information provided to YANTRA CONSULTING is correct, current and complete;
• for any work to be performed at the Customer’s premises, ensure a suitable and safe environment for YANTRA CONSULTING to provide the Services including the proper induction of YANTRA CONSULTING Personnel or Sub-contractor on any applicable work place policies;
• if required, provide and make available to YANTRA CONSULTING any customer provided items to enable YANTRA CONSULTING to perform the Services; and
• comply with all applicable Laws in relation to YANTRA CONSULTING’s provision of the Services.

YANTRA CONSULTING's warranties

1. YANTRA CONSULTING represents and warrants to Customer that, in performing the Services, YANTRA CONSULTING and its Personnel shall:
   • exercise the standards of diligence, skill and care normally exercised by a similarly qualified and competent person in the performance of work comparable to the Services;
   • act in a workmanlike, careful, safe and proper manner; and
   • perform the Services in a timely manner.
2. YANTRA CONSULTING warrants the Services for a period of 7 days from the Start Date where YANTRA CONSULTING will rectify any defects in the Deliverables at its cost.
3. The limited warranty in clause 9.2 will not apply if:
   • the Customer uses the Services or deliverables in a way that is not approved or authorised by YANTRA CONSULTING;
   • the Customer uses the Services or deliverables with other products that are not approved or authorised by YANTRA CONSULTING; and
   • the Customer makes changes or repairs to the Services or deliverables without YANTRA CONSULTING’s prior approval.

Customer’s warranties

The Customer warrants that it has obtained all necessary permissions to enable YANTRA CONSULTING to perform the Services, including without limitation any work permits required at the Customer’s premises.

Limitation of liability and consequential loss

1. To the extent permitted by law, YANTRA CONSULTING’s liability in relation to the Agreement under any term, condition, warranty, undertaking, inducement or representation that by Law cannot be excluded or that is not otherwise excluded by the Agreement, is limited, at YANTRA CONSULTING’s, option to:
   • in the case of services, the cost of the resupply or payment of the cost of resupplying the services; and
   • in the case of goods, the replacement of the goods, the repair of the goods, the payment of the cost of replacing the goods or acquiring equivalent goods or the payment of the cost of having the goods repaired.
2. To the extent permitted by Law, YANTRA CONSULTING’s total liability in respect of all claims in connection with the Agreement (whether in contract, negligence or any other tort, under any statute or otherwise) will be the sum of the Charges paid or payable by the Customer under this Agreement.
3. YANTRA CONSULTING is not liable (under the law of contract, tort, equity or otherwise):
   1. for any damages of any kind arising out of or in connection with the Agreement that are indirect or consequential (meaning not arising in the ordinary course as a direct, natural or probable consequence of the act or omission complained of); or
   2. for any loss of revenue, loss of sale, loss of profits, loss of business or any other economic loss or any loss of goodwill, regardless of the cause of such damages or whether YANTRA CONSULTING had been advised of the possibility of such damage.
4. Except as provided in this Agreement, and to the extent permitted by law, the Services and Deliverables are provided by YANTRA CONSULTING without any warranties or representations, express or implied. Furthermore, YANTRA CONSULTING does not warrant that the Services and Deliverables will be free of interruptions, delays or faults where the said interruptions, delays or faults are caused by the Customer.

Change requests

1. The Customer may at any time, issue a request to YANTRA CONSULTING which:
   • increases the scope of any part of the Services; or
   • requires YANTRA CONSULTING to supply additional services.
2. If Customer issues a direction under 12.1, YANTRA CONSULTING must, within 14 days of the request, provide a revised proposal to the Customer with any Charges applicable to the change.
3. If YANTRA CONSULTING becomes aware that a service is required which is additional to the Services, or that there is a need to vary the Services, then YANTRA CONSULTING must promptly notify the Customer by providing a revised proposal giving details of the nature and extent of the variation and the consequences, if any, of not performing the additional services.
4. Within 14 days of YANTRA CONSULTING’s revised proposal in clauses 12.2 or 12.3, the Customer must either accept or reject the revised proposal. If YANTRA CONSULTING does not receive a response in that period, then the Customer is deemed to have accepted the revised proposal.
5. For the avoidance of doubt, the Customer and YANTRA CONSULTING may negotiate any revised proposal issued by YANTRA CONSULTING, including the scope and extent of the variation to the Services plus any adjustment to the Charges.

Assignment and sub-contracting by YANTRA CONSULTING

1. Neither party may assign all or any part of its rights or obligations under the Agreement without the prior written consent of Customer.
2. YANTRA CONSULTING or the Sub-contractor may sub-contract any or all of its obligations to a sub-contractor but no sub-contracting will relieve YANTRA CONSULTING of its obligations to the Customer under the Agreement.

Intellectual Property Rights

1. Nothing in this Agreement transfers the ownership of Intellectual Property Rights of either party created prior to this Agreement or independently of this Agreement. In particular, the engag3d software, the Agile Strategy Framework and its related models and document templates used by YANTRA CONSULTING during the delivery of the Service will remain the property of YANTRA CONSULTING.
2. The Customer provides YANTRA CONSULTING or its Sub-contractors a licence to use, reproduce or modify any intellectual property owned by the Customer that YANTRA CONSULTING reasonably requires in order to provide the Services.

Termination

1. Either party may terminate this Agreement by a 30 day written notice if the other party:
   • commits a material breach that is incapable of being remedied;
   • for material breaches that are capable of being remedied, if the breaching party has failed to remedy the breach within 30 days after receiving a notice from the other party requiring the breach to be remedied; or
   • suffers an Insolvency Event.
2. Upon termination, the Customer will pay YANTRA CONSULTING a pro-rata amount for any work performed to date. Such payment does not affect any other rights that YANTRA CONSULTING may have at law.

Force Majeure

1. If a party is prevented in whole or in part from carrying out its obligations under this Agreement as a result of a Force Majeure Event, it must promptly give a notice to the other party that specifies the obligations the party cannot perform and describes the Force Majeure Event.
2. Following the notice referred to above, and while the Force Majeure Event continues, the obligations which cannot be performed because of the Force Majeure Event will be suspended.
3. The party that is prevented from carrying out its obligations under the Agreement as a result of a Force Majeure Event must take all action reasonably practicable to mitigate any loss or damage suffered or incurred by a party as a result of its failure to carry out its obligations under this Agreement, remedy the Force Majeure Event to the extent reasonably practicable and resume performance of its obligations as soon as reasonably possible (save that a party is not required to settle any state-wide or national strikes or state-wide or national industrial action against its will).
4. Neither party will be liable for failing to meet its obligations under the Agreement (except for the Customer’s obligation to pay the Charges) because of a Force Majeure Event.
5. If the Force Majeure Event continues for 60 days from the beginning of the Force Majeure Event, then either party may terminate the Agreement in writing to the other party.

Dispute resolution

1. If any dispute, controversy or claim arises under the Agreement, a party will provide written notice to the other of the matters in dispute (“Dispute Notice”) and the parties will meet for the purpose of resolving the dispute within 14 days after the service of the notice. The Dispute Notice must provide sufficient particulars of the dispute.
2. If the dispute is not resolved within 21 days after the service of the Dispute Notice, either party may call a meeting of a member of the senior management of each of the Customer and YANTRA CONSULTING (or their respective nominees) who must meet within 7 days after the service of this request for a meeting, to attempt to resolve the dispute in good faith.
3. If the dispute is not resolved within 14 days after the service of the meeting request provided under clause 20.2, the parties must submit the dispute to mediation administered by the Institute of Arbitrators and Mediators Australia, such mediation to be conducted in accordance with, and subject to, the Institute of Arbitrators and Mediators Australia Mediation and Conciliation Rules. The mediator will be an independent person agreed by the parties or, failing agreement, a mediator will be appointed by the President of the Institute of Arbitrators and Mediators Australia. Any mediation meetings and proceedings under this clause must be held in Brisbane, Queensland.
4. Neither party may commence litigation, other than urgent interlocutory relief, unless and until the procedures in this clause 20 have been complied with.

Notices

1. All notices to the other party must be sent by email or letter, the details of which are: YANTRA CONSULTING

   Level 22, 127 Creek St
   Brisbane, QLD 4000
   e: roop@yantra.consulting

2. Any notice sent by post to the above address will be assumed to be delivered two Business Days after it is posted.

Entire agreement

The Agreement comprises the entire agreement between the parties and supersedes all prior contracts, arrangements, understandings or representations (if any) between the parties in respect of the Services.

Other terms and conditions of no legal effect

No other terms and conditions in any document or purchase order issued by the Customer will form part of the Agreement for the performance of the Services, notwithstanding the signing of any such document by a representative of the Customer or YANTRA CONSULTING for any reason. Such terms and conditions will be of no legal effect.

Relationship of parties

The relationship between the Customer and YANTRA CONSULTING is a relationship of principal and independent contractor. Nothing in the Agreement will be construed to create a relationship of employment, agency or partnership.

Governing law and jurisdiction

The Agreement is governed and interpreted in accordance with the Laws in force from time to time in the State of Queensland and the parties unconditionally submit to the non-exclusive jurisdiction of the courts in that State.

No waiver

No waiver of or variation to the Agreement will be binding on the parties unless in writing signed by the parties.

Amendment

The Agreement can be amended, modified, varied or supplemented by Yantra Consulting at any time and will be communicated to the Customer accordingly.

Consent

Where the consent, approval or agreement of a party is required under the Agreement, that consent, approval or agreement must not be unreasonably withheld or delayed.

Severability

Any provision in the Agreement which is invalid or unenforceable in any jurisdiction is to be read down for the purposes of that jurisdiction, if possible, so as to be valid and enforceable, and is otherwise capable of being severed to the extent of the invalidity or unenforceability, without affecting the remaining provisions of the Agreement or the validity or enforceability of that provision in any other jurisdiction.

Costs

Each party must bear its own costs arising out of the negotiation, preparation and execution of the Agreement.

Acknowledgement

Each party acknowledges that it has received independent legal advice prior to executing the Agreement, or has had the opportunity to seek such legal advice but waives its right to do so.

Interpretation

In this Agreement:

• headings are for convenience only and do not affect the interpretation of the Agreement.
• the singular includes the plural and vice versa.
• a gender includes all genders.
• a reference to a person, corporation, trust, partnership, unincorporated body or other entity includes any of them.
• a reference to a law, legislation or to a provision of legislation includes a modification or re- enactment of it, a legislative provision substituted for it and a regulation or statutory instrument issued under it.
• the meaning of general words is not limited by specific examples introduced by “including”, “for example” or similar expressions.
• no rule of construction shall apply to the disadvantage of a party on the basis that that party prepared the Agreement.