Terms of Consultancy

Terms of Consultancy

1. The following definitions apply unless the context requires otherwise: "Agreement" means the Proposal and these terms of consultancy; 

"Stochastic Project Services" means Stochastic Project Services Pty Ltd; 

"Client" mean the person named and described as such in the Proposal; 

"Client Material" means information, specifications, data and other material to be supplied by the client to enable the consultancy to be carried out; 

"Consultancy" means the work to be carried out by Stochastic Project Services as set out in the Proposal; 

"Consultancy Discoveries" means any inventions, discoveries, works, improvements or innovations created by Stochastic Project Services as a direct result of carrying out the consultancy including those disclosed and/or subsisting in the Results of the Consultancy; 

"Intellectual Property Rights" means statutory and other rights in respect of property right, patents, copyrights, confidential information and all other intellectual property rights as defined in Article 2 of the Convention Establishing the Work Intellectual Property Organisation of July 1967; 

"Proposal" means the writing accompanying these terms of consultancy which details the consultancy; 

"Results of the Consultancy" means the reports, samples, prototypes, artefacts and other deliverables as set out in the Proposal arising from the carrying out of the consultancy. Results of the Consultancy does not include Consultancy Discoveries; 

“Third Party” is a party that is not the Client or Stochastic Project Services;

"Third Party Claim" means any claim by or judgement or award in favour of the third party arising directly or indirectly out of the use or exploitation of the Results of the Consultancy and/or Consultancy Discoveries by the Client.

2. This agreement contains the whole of the agreement between Stochastic Project Services and the Client with respect to the consultancy and supersedes any and all other representations or statements by either party or its officers, employees, or agents whether oral or in writing, whether made prior or subsequent to the date of this Agreement.

3. Stochastic Project Services must carry out the consultancy in accordance with the Proposal and otherwise in accordance with the terms of this Agreement unless otherwise agreed in writing.

4. If Client Material is required to be supplied by the Client in order for Stochastic Project Services to carry out the consultancy: (a) The timing of the supply and the content and format of the Client Material will be as described in the Proposal or advised to the Client by Stochastic Project Services at the commencement of the consultancy; (b) Stochastic Project Services shall not be liable for any delays or extra expenses resulting from a failure by the Client to provide the Client Material by the specified date or dates, or in accordance with the specified content or format; (c) The Client warrants the accuracy of all Client Material supplied.

5. In the event that Client Material is not supplied by the client as specified by Stochastic Project Services, Stochastic Project Services may seek written approval from the Client, which shall not be unreasonably withheld, to use substitute data, information or other material and adjust the proposal as necessary in order to fulfil the consultancy, provided that Stochastic Project Services: (a) Submits to the Client a written description of the nature of the substitute data, information or material; (b) Advises the Client of the potential effects of the use of the substitute data, information or material on the consultancy, including the Results of the Consultancy; and (c) If the use of substitute data, information or material is likely to result in extra expenses to Stochastic Project Services in carrying out the consultancy, provides the Client with an estimate of the extra expenses.

6. The Client is liable for payment of any extra expenses reasonably incurred by Stochastic Project Services as a result of any delays in the supply of Client Material as described in Clause 4(b) and any approvals granted under Clause 5, which shall be added to the consultancy fee set out in the Proposal.

7. Subject to Clause 6, in consideration of Stochastic Project Services carrying out the consultancy, the Client must pay Stochastic Project Services the consultancy fee set out in the Proposal at the time and in the manner set out therein.

8. Stochastic Project Services must deliver to the Client the Results of the Consultancy at the time in the manner set out in the Proposal provided that if the consultancy fee is not paid as aforesaid the Client shall have no rights whatsoever to the Results of the Consultancy which shall be retained by Stochastic Project Services and used for such purposes as Stochastic Project Services deems fit.

9. The Consultancy Discoveries and the Intellectual Property Rights subsisting therein shall belong to Stochastic Project Services and to the extent that the Client may hold any interest in or to any Intellectual Property Rights existing now or in the future in respect of any Consultancy Discoveries, the Client hereby assigns to Stochastic Project Services all of its rights to and interest in such Intellectual Property Rights. Subject to the Client complying with its obligations under this Agreement, Stochastic Project Services hereby grants to the Client a non-exclusive, non-transferrable royalty free and perpetual licence to use the Consultancy Discoveries and such Intellectual Property Rights to the extent that such use is necessary for the proper use and enjoyment by the Client of the Results of Consultancy.

10. Stochastic Project Services shall not be liable for any failure to carry out the consultancy where such failure is due to any cause beyond the reasonable control of Stochastic Project Services.

11.     Stochastic Project Services either alone or in association with others shall have the right to conduct research independent of the consultancy, whether within or outside the field of endeavour in which the consultancy is being conducted, without being required to account to the Client in any way whatsoever.

12. Each party must treat the terms of this Agreement and all confidential information owned by the other party as confidential. Each party's obligations of confidentiality in this clause shall survive termination of this Agreement and shall continue until the confidential information disclosed to it lawfully becomes part of the public domain.

13. The client shall use the Results of the Consultancy and the Consultancy Discoveries at its own risk. The Clients' obligations under this Clause shall survive expiration or earlier termination of this Agreement for a period of 10 years after such expiration or earlier termination as the case may be.

14. The Client hereby agrees and acknowledges that: (a) Stochastic Project Services warrants only that it shall carry out the consultancy according to proper professional standards; (b) Stochastic Project Services has not made any and hereby excludes all warranties, terms, conditions or undertakings, whether express or implied, written or oral, statutory or otherwise including any implied warranty of merchantability of or fitness for a particular purpose in respect of the Results of the Consultancy and/or the Consultancy Discoveries. To the full extent permitted by the laws of the Commonwealth of Australia or of any State or Territory of Australia having jurisdiction, any conditions or warranties imposed by such legislation are hereby excluded. Insofar as liability under or pursuant to such legislation may be excluded, such liability is limited, at the exclusive option of Stochastic Project Services to: (i) The re-performance of the consultancy; or (ii) The re-imbursement of any fees paid;

15. Without limiting the generality of clause 14(b) hereof it is agreed that, to the full extent permitted by the laws of the Commonwealth of Australia and any State or Territory of Australia having jurisdiction, Stochastic Project Services will not be liable for any special, indirect or consequential damages arising under or pursuant to this Agreement.

16. Without limiting the generality of clause 14 hereof, the Client hereby further acknowledges and agrees that: (a) Stochastic Project Services has not made and does not by entering into this agreement make and representation or warranty, express or implied that the Results of the Consultancy and/or the Consultancy Discoveries do not infringe any third party's Intellectual Property Right; and (b) The client must make all inquiries to determine: (i) The fitness for purpose, suitability and merchantability of the Results of the Consultancy and/or the Consultancy Discoveries; and (ii) That the exploitation or use of the Results of the Consultancy and/or the Consultancy Discoveries will not give rise to any Third Party Claim; and (iii) The Client shall indemnify Stochastic Project Services, its officers, employees, sub-contractors and agents and keep them indemnified in respect of any Third Party claim and any non-compliance by the Client of its obligations under this clause. The Client's obligation to so indemnify Stochastic Project Services, its officers, employees, sub-contractors and agents is a continuing obligation separate and independent of the client's other obligations and shall survive expiration or where relevant, earlier termination of this Agreement.

17. If a dispute arises between the parties out of or relating to this Agreement (the "Dispute"), any party seeking to resolve the Dispute must do so strictly in accordance with the provisions of this clause. Compliance with the provisions of this clause is a condition precedent to seeking relief in any court or tribunal in respect to the Dispute. A party seeking to resolve the Dispute must notify the existence and nature of the Dispute to the other parties (the "Notification"). Upon receipt of a Notification the parties must refer resolution of the Dispute to their respective chief executive officers or their nominees. If the Dispute has not been resolved within thirty (30) days of receipt of the notification then any party may refer the Dispute to mediation and must do so before initiating proceedings in a court to resolve the Dispute. Any Dispute which is referred to mediation must be referred to the Australian Commercial Dispute Centre Limited ('ACDC") and be conducted in accordance with the conciliation Rules of ACDC. If the Dispute has not been resolved within sixty (60) days of referral to ACDC either Party is free to initiate proceedings in a court.

18. This Agreement shall in all respects be construed as an agreement made in the State of Western Australia and subject to the Laws of that State. Each party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts of the State of Western Australia and courts of appeal from them for determining any dispute concerning this agreement.

19. The invalidity or unenforceability of any one or more of the provisions hereof shall not invalidate or render unenforceable the remaining provisions of this Agreement. Any illegal or invalid provision of this Agreement shall be severable and all other provisions shall remain in full force and effect.

20. Any failure by a party to compel performance by the other party of any of the terms and conditions of this Agreement shall not constitute a waiver of those terms and condition, nor shall it effect or impair the right of the first mentioned party to enforce them at a later time or to pursue remedies it may have for any subsequent breach of those terms and conditions.

21. Neither this Agreement nor any term thereof may be amended or waived except by a written instrument signed by each of the parties hereto.

22. Each party enters this Agreement as an independent contractor. Nothing herein shall create any other relationship between them including, without limitation any relationship of partnership, agency, trust, joint venture or otherwise.

23. To secure the payment for the performance of the consultancy, the Client grants a security interest to Stochastic Project Services with respect to all of the Client's present and after acquired property for such security interest or power: (a) Reserved in or over in an interest in an asset, including any retention of title; or (b) Created or otherwise arising in or over any interest in any asset under a Security Agreement, Bill of Sale, Mortgage, Charge, Lien, Pledge, Trust or Power by way of or having similar commercial affect to security for payment of a debt, any other monetary obligation or the performance of any other obligation, and includes any agreement to grant or create any of the above and includes a security interest within the meaning of section 12(1) of the Personal Property Securities Act (PPSA).

24. Security is the aggregate of all monies which the Client is or any time may become actually or continently liable to pay to or for the account of Stochastic Project Services. It includes, without limitation, money by way of principal, interest, fees, costs, indemnities, charges, duties or expenses or payment of liquidated or unliquidated damages for which the Client is or at any time may become so liable under or in connection with the Consultancy Agreement.

25. Where the Client would have been liable for such monies but for its liquidation it would be taken still to be liable.

26. The secured property mean all PPS property and all non-PPS property and the security interest means the security interest under the PPSA together with any other Mortgage, Pledge, Lien or Charge in relation to any property (whether or not it is personal property) or any other interest or arrangement of any kind that in substance secures the payment of money or the performance of the obligation or that gives Stochastic Project Services priority over unsecured creditors in relation to any property (whether or not it is personal property)

27. Any deliverables provided by Stochastic Project Services to the Client which the Client distributes to third parties shall be deemed accepted by the Client as accurate and suitable for their intended purpose upon such distribution. By distributing the deliverables, the Client assumes full responsibility for their subsequent use, application, and any consequences arising therefrom, including their validity and impact on any third party. This assumption of responsibility occurs upon distribution, irrespective of any prior formal approval of the deliverable by the Client.