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Terms & Conditions
Terms & Conditions
DEFINITIONS AND INTERPRETATION
Definitions: In this Agreement, background recitals, and any schedules to it, the following words will, unless the context otherwise admits or requires, have the following meanings:
Agreement means this Agreement, and all schedules that are attached to or referenced by such Agreement.
Commencement Date has the meaning set out in Schedule One.
Confidential Information means any information, whether verbal, written or otherwise including without limitation documents, pricing, plans, sketches, drawings, literature, processes, technical information, know-how, techniques, methodologies and/or business information which relates to a party, and which is marked or stated to be confidential, or by its nature is reasonably intended to be confidential, but does not include such information which:
(a) is required to be publicly disclosed, from the date of such public disclosure;
was in the public domain on the date of its receipt; or
had entered the public domain after the date of its receipt other than by unauthorised disclosure.
Fee means the amount payable by the Client to Bloom pursuant to clause 4, as consideration for performance of the Services.
Intellectual Property means all intellectual property rights, including without limitation trade marks, trade name(s), patents, know-how, copyright, and any other intellectual property.
Services means the services to be performed by Bloom for the Client as generally described in Schedule One.
Working Day has the meaning set out in the Companies Act 1993.
Definitions: In this Agreement, background recitals, and any schedules to it, the following words will, unless the context otherwise admits or requires, have the following meanings:
Agreement means this Agreement, and all schedules that are attached to or referenced by such Agreement.
Commencement Date has the meaning set out in Schedule One.
Confidential Information means any information, whether verbal, written or otherwise including without limitation documents, pricing, plans, sketches, drawings, literature, processes, technical information, know-how, techniques, methodologies and/or business information which relates to a party, and which is marked or stated to be confidential, or by its nature is reasonably intended to be confidential, but does not include such information which:
(a) is required to be publicly disclosed, from the date of such public disclosure;
was in the public domain on the date of its receipt; or
had entered the public domain after the date of its receipt other than by unauthorised disclosure.
Fee means the amount payable by the Client to Bloom pursuant to clause 4, as consideration for performance of the Services.
Intellectual Property means all intellectual property rights, including without limitation trade marks, trade name(s), patents, know-how, copyright, and any other intellectual property.
Services means the services to be performed by Bloom for the Client as generally described in Schedule One.
Working Day has the meaning set out in the Companies Act 1993.
SERVICES
Services: Bloom will perform the Services in accordance with the requirements of Schedule One, and any reasonable written directions and instructions issued by the Client.
Term: The term of this Agreement shall commence on the Commencement Date, and will, subject to earlier termination pursuant to clause 8, continue until all Services have been completed in accordance with clause 2.2, or the parties otherwise agree in writing.
Non-exclusive: The parties acknowledge and agree that this Agreement is non-exclusive in nature, and Bloom may perform services that are similar or identical to the Services for third parties, and that the Client may engage other providers of services that are similar to or identical to the Services.
Subcontracting: Bloom may subcontract any or part of the Services, or other obligation pursuant to this Agreement to any third party, in its discretion. Bloom will at all times remain responsible for the subcontractors compliance with this Agreement.
Commencement and completion: Bloom will, use reasonable endeavours to complete the Services on or prior to the estimated completion date set out in Schedule One.
WARRANTIES
Service Warranty: Bloom warrants that the Services will be performed in a professional manner.
No Warranty: Bloom does not provide any warranty or representation as to the suitability, operation, results, outcomes, implications, performance or any other similar matter in relation to the Services.
Exclusions: To the maximum extent permitted by law, all warranties, conditions guarantees and liabilities, whether express or implied by law, trade, custom or otherwise, and whether relating to the quality or fitness for purpose of the Services, quality, title, intellectual property infringement, or otherwise, are expressly excluded.
PRICE AND PAYMENT
General: The Client shall pay the Fee in the manner described in this clause 4 and in accordance with Schedule One.
Expenses: In addition to the Fee, the Client shall reimburse Bloom for pre-approved expenses set out in Schedule One and incurred by Bloom directly in relation to the Services.
Information: Bloom shall keep and maintain records relating to the time taken to perform the Services, and any expenses that may be claimed pursuant to clause 4.2, and shall make such records available to the Client on request.
Invoice: Bloom shall invoice the Client in the manner described in Schedule One.
Payment: The Client shall pay the amount set out in each invoice within 7 days from the date of the applicable invoice, unless otherwise agreed in writing by Bloom. All payments shall be made to Bloom’s nominated bank account, in cleared funds, without deduction or setoff.
GST: Unless otherwise stated all amounts set out or payable pursuant to this Agreement are exclusive of, and plus, GST.
Dispute: Should the Client, acting reasonably, dispute the content of any invoice, it shall notify Bloom in writing (Dispute Notice). The Dispute Notice must be received by Bloom within 10 Working Days after the date of the invoice. If the parties are unable to resolve a payment dispute within 10 Working Days after the Dispute Notice, either party may refer the matter for resolution pursuant to clause 10.1.
SECURITY AND FAILURE TO PAY
Security Interest: To secure the Client’s payment and other obligations set out in this Agreement, the Client grants to Bloom a security interest over all of the Client’s present and after acquired property.
Cooperation and waiver: The Client agrees to:
if required by Bloom, cooperate in good faith with Bloom to execute the documentation required to register any security interest in favour of Bloom on the Personal Property Securities Register and protect Bloom’s interest described in clause 5.1; and
waive any right to receive a copy of the verification statement, pursuant to s148 of the Personal Property Securities Act 1999.
Options: If the Client fails to pay any amount on or prior to the applicable due date for payment, or is otherwise in breach of this Agreement, Bloom may, in its sole discretion, without prejudice to and in addition to any other rights and remedies, do any one or more of the following:
suspend the provision of the Services and the operation of this Agreement;
if payment is not made within five Working Days of Bloom’s written demand, terminate (in whole or in part) this Agreement;
charge interest at a rate of 1.5% per month on the amount owing, calculated on a daily basis, from the applicable due date for payment until Bloom receives payment in full;
take legal or other action to recover the amounts owing and/or appoint a collections agent or other third party to collect the amounts owing; and/or
enforce any security.
Costs: All costs and expenses associated with the Client’s default (including legal costs as between solicitor and client, and the costs of taking any action described in clause 5.3) shall be paid by the Client, in addition to any amount owing to Bloom, on Bloom’s written demand.
INTELLECTUAL PROPERTY
Pre-Existing IP: Each party will retain ownership of their Intellectual Property created or existing at the Commencement Date, or developed during the term of this Agreement that is entirely unrelated to this Agreement (Pre-Existing IP) and the other party will have no right, title, interest or claim to the other parties’ Pre-Existing IP. Any Intellectual Property owned by a third party that is used in the performance of the Services, shall remain owned by such third party, and the Client shall be responsible to procure any necessary licence to use such third party owned Intellectual Property.
New IP: The Client shall, on payment of the Fees in full, own all new Intellectual Property created or developed by Bloom in performing the Services.
IP Licence: The Client permits Bloom to use and modify any of the Client’s Pre-Existing IP to the extent that it is incorporated into the Services, or reasonably required for the Client to make use of the Services.
INFORMATION
Obligation of confidence: Each party shall hold and maintain all Confidential Information in strict confidence and as a trade secret. Each party shall effect and maintain security measures to safeguard the Confidential Information that are at least as stringent as those effected and maintained by Bloom for its own Confidential Information.
Disclosure: A party may only use and disclose Confidential Information to the extent required by law, by a Court of competent jurisdiction, pursuant to the rules of any applicable stock exchange, or as agreed in writing by the parties. Bloom may use the Client’s Confidential Information as reasonably required in undertaking the Services.
Privacy: The parties acknowledge that Bloom may have access to sensitive or personal information held by the Client. As such, Bloom agrees at all times, to comply with the requirements of the Client, the Client’s relevant policies and procedures and the Privacy Act 2020 in relation to such information. Bloom agrees that it shall only access or use such information that it is expressly authorised to access by the Client as part of the Services. Any personal information held by the Client shall at all times constitute Confidential Information.
Media and advertising: The Client agrees to Bloom publishing the name and logo of the Client on Bloom’s website for the purpose of advertising the name and general nature of the services that Bloom has completed for the Client.
TERMINATION
Termination with cause: A party (Notifying Party) may terminate this Agreement immediately, by providing notice in writing to the other party, if:
the other party commits a material breach of this Agreement and such breach, if capable of remedy, is not remedied within five Working Days of receipt by the other party of written notice of such breach from the Notifying Party;
the other party commits a material breach of this Agreement and such breach is incapable of remedy; or
the other party enters into administration, receivership or liquidation, bankruptcy, is struck off, wound up, reasonably appears to be insolvent or unable to pay its due debts.
Termination without cause: A party may terminate this Agreement by providing at least 10 Working Days’ notice in writing to the other party.
Effect of termination of Agreement: If this Agreement is terminated:
Bloom shall immediately cease provision of the Services, shall issue a final invoice for all of the Services undertaken up to the point of such termination, and notwithstanding clause 4, the Client shall pay such final invoice within 3 Working Days after the date of such invoice;
Each party shall cease use of the other party’s Confidential Information and Intellectual Property, return any equipment, materials and/or property (including without limitation Confidential Information and Intellectual Property); and
such termination shall be without prejudice to any rights and/or obligations of the parties existing at the time of termination or expiry.
LIABILITY
Indemnity: The Client shall indemnify Bloom in respect of all liabilities, costs (including full costs between solicitor and client), expenses, claims, damages or demands incurred by Bloom or any third party resulting from any acts or omissions of the Client (including but not limited to any employee or agent of the Client) and the Client’s breach of this Agreement.
No Liability: Notwithstanding anything else in this Agreement, Bloom shall not be under any liability whatsoever to the Client for any indirect loss, consequential loss, loss of profit, loss of bargain, loss of business opportunity, loss of data or exemplary damages or losses suffered by the Client, whether arising out of or flowing from any pre-contractual misrepresentation or breach of this Agreement or not, whether contemplated by this Agreement or not, and whether actionable in contract, tort (including negligence), equity or otherwise.
Limitation: Notwithstanding clause 9.2 in the event that Bloom is found liable for any loss or damages, including without limitation the loss set out in clause 9.2, such liability shall be limited to the lower of, the Fee paid by the Client to Bloom in relation to that part of the Services giving rise to the loss or damage, but in no circumstances will Bloom’s liability, in aggregate in respect of any and all claims in relation to the value of the Services under the Agreement.
Proportionate liability: Bloom shall not be liable for any act, omission, or breach of this Agreement, to the extent that such act or omission has been contributed to by the Client or any other third party.
Insurance: Bloom shall take out and maintain during the term of this Agreement public liability insurance, with a reasonable sum insured. A certificate of insurance can be provided on request.
MISCELLANEOUS
Dispute resolution: In the event of any dispute between the parties in relation to this Agreement, the parties shall first seek to resolve such dispute by promptly giving notice of such dispute to all other parties (Dispute Notice) and cooperatively endeavouring to resolve such dispute. If the dispute remains unresolved within 10 Working Days after the date that the last party was provided with a Dispute Notice, the parties shall then seek a resolution through the use of mediation prior to seeking resolution through the Courts.