IT – Terms Of Service

Effective as of: 17/02/2025

1. Definitions and Interpretations

1.1 Definitions

In this Agreement:

Any capitalised terms set out in the first column of the Parties and Execution and Key Details sections of the SOW that are not otherwise defined have the same meaning in this Agreement;

Australian Consumer Law means the Australian Consumer Law as set out in Schedule 2 to the CCA;
Business Day means a day which is not a Saturday, Sunday or public holiday in New South Wales;
Business Hours means 9am to 5pm AEST, or such other hours as specified in the applicable SOW;
CCA means the Competition and Consumer Act 2010 (Cth);
Confidential Information means information in any form (including oral, written and electronic) that is directly or indirectly disclosed by Cadgroup to the Customer or any representative of the Customer, or which the Customer obtains or becomes aware of and that relates to Cadgroup, before or after the date of this Agreement, including:
- the terms of this Agreement, any SOW, and any other agreement entered into between the parties, including the Fees and the Services;
- all business, financial, accounting, marketing, commercial, customer and technical information used by or relating to Cadgroup or its transactions or affairs;
- all products, concepts, inventions, discoveries, technology, methodologies, processes, trade secrets, knowledge, data, documents, manuals, policies and Intellectual Property of Cadgroup;
- other information that by its nature is confidential to Cadgroup, is designated as confidential by Cadgroup, was obtained by the Customer in circumstances of confidence, and/or that that the Customer knows or ought to know is confidential to Cadgroup;
- all notes and reports incorporating or derived from information referred to in (a) to (d) above; and
- all copies of the information or items referred to in (a) to (e) above,
but excluding information
- that is in the public domain otherwise than as a result of a breach of this Agreement or confidentiality by the Customer; or
- the Customer can establish was rightfully known to or in the possession, custody or control of the Customer and not subject to an obligation of confidentiality in favour of Cadgroup;
Force Majeure means an event or circumstance beyond the reasonable control of a party and which could not have reasonably been contemplated, allowed for, prevented or overcome by that party and which results in that party being unable to observe or perform on time an obligation under this Agreement, and includes the following to the extent that they are beyond a party’s reasonable control:
1. acts of God or government, earthquakes, floods, droughts, storms, mud slides, explosions, fires and any natural disaster; and
2. acts of war, acts of public enemies, terrorism, civil commotion, pandemic, sabotage and revolution;
GST means goods and services tax or similar value added tax levied or imposed in Australia under the GST Law (as defined in the GST Act) or otherwise on a supply;
GST Act means A New Tax System (Goods and Services Tax) Act 1999 (Cth);
Insolvency Event, for a party, means the occurrence of any one or more of the following events:
- a meeting has been convened, resolution proposed, petition presented, or order made for the winding up of the party;
- an administrator is appointed to the party or action is taken to make that appointment;
- a receiver, receiver and manager, provisional liquidator, liquidator, or other officer of the Court, or other person of similar function has been appointed regarding all or any material asset of the party;
- the party ceases to carry on business;
- the party enters into a compromise or arrangement with its creditors or a class of them;
- a security holder, mortgagee or chargee has taken, attempted or indicated an intention to exercise its rights under any security of which the party is the security provider, mortgagor or chargor;
- the party is or states that it is unable to pay its debts when they fall due; or
- anything occurs under the law of any jurisdiction which has a substantially similar effect to any of the above paragraphs of this definition.
Law means all statutes, regulations, standards, by-laws, ordinances, subordinate legislation, industry codes of conduct and any government order, decree or other instrument;
Service Level Agreement means a written service level agreement entered into by the parties describing target Service Levels for particular Services;
Service Levels means the standards for performance of the Services set out in the SOW or in Cadgroup’s then-current standard Service Level Agreement;
Services means the services to be provided by Cadgroup as described in an SOW;
SOWmeans a statement of work for the provision of Services formed between the parties in accordance with clause 3, where the first SOW may be annexed to this Agreement;
Specifications means any specifications or requirements for the Services set out in an SOW or agreed in writing by the parties;
Support Services means the support services described in the SOW and the applicable Service Level Agreement for such support services, which may include “Hyper Care Support” if specified in the SOW;
Technical Services means the services described in the SOW which include Cadgroup delivering integration services, developing custom reports, developing scripts or implementing user defined fields that are not standard to the Customer’s current software solution; and
Transition-Out Services means the Services specified in an SOW to be performed by Cadgroup on termination of an SOW to enable the smooth and orderly transfer of the Services to those of a third party or to the Customer.

1.2 Interpretation

In this Agreement, unless the context otherwise requires:

A. a reference to:

1. 1. the singular includes the plural, and the plural includes the singular;
  2. a recital, clause or schedule is a reference to a clause of or recital or schedule to this Agreement and references to thisAgreement include any recital or schedule;
  3. any contract (including this Agreement) or other instrument includes any variation or replacement of it and as it may beassigned or novated;
  4. a statute, ordinance, code or other law includes subordinate legislation (including regulations) and other instrumentsunder it and consolidations, amendments, re-enactments or replacements of any of them;
  5. a person or entity includes an individual, a firm, a body corporate, a trust, an unincorporated association or anauthority;
  6. a person includes their legal personal representatives (including executors), administrators, successors, substitutes(including by way of novation) and permitted assigns;
  7. a group of persons is a reference to any two or more of them taken together and to each of them individually;
  8. an entity which has been reconstituted or merged means the body as reconstituted or merged, and to an entity whichhas ceased to exist where its functions have been substantially taken over by another body, means that other body;
  9. time is a reference to legal time in Sydney, New South Wales;
  10. a reference to a day or a month means a calendar day or calendar month; and
  11. money (including “$”, “AUD” or “dollars”) is to Australian currency;

B. unless expressly stated, no party enters into this Agreement as agent for any other person (or otherwise on their behalf orfor their benefit);
C. the meaning of any general language is not restricted by any accompanying example, and the words “includes”, “including”,”such as”, “for example” or similar words are not words of limitation;
D. the words “costs” and “expenses” include reasonable charges, expenses and legal costs on a full indemnity basis;
E. headings and the table of contents are for convenience only and do not form part of this Agreement or affect its interpretation;
F. if a period of time is specified and dates from a given day or the day of an act or event, it is to be calculated exclusive of that day;
G. the time between two days, acts or events includes the day of occurrence or performance of the second but not the first day act or event;
H. if the last day for doing an act is not a Business Day, the act must be done instead on the next Business Day;
I. where there are two or more persons in a party each are bound jointly and severally; and
J. a provision of this Agreement must not be construed to the disadvantage of a party merely because that party was responsible for the preparation of this Agreement or the inclusion of the provision in this Agreement.

2. Term

This Agreement commences on the Commencement Date and will continue until terminated in accordance with the provisions of this Agreement. Either party may terminate this Agreement by giving 30 days’ notice in writing to the other party if there are no SOWs in force at the time that the notice is given, and all invoices have been paid in full before the effective date of termination.

3. Statements of work

The parties may from time to time execute an SOW for the provision of Services by Cadgroup to the Customer.

A. When agreed by both parties, each SOW will constitute a separate contract between the parties, consisting of the terms and conditions of the SOW together with the terms and conditions of this Agreement, to the exclusion of all other terms and conditions.
Any other terms or conditions (which may be set out in any order, request, payment confirmation or other documentsubmitted by the Customer) will be of no force or effect, and this Agreement will supersede such terms and conditions andany course of conduct or usage of the trade inconsistent with this Agreement.
B. Once agreed by the parties, the SOW may only be varied in accordance with the Change Procedure.
C. In the event of any inconsistency, this Agreement will be interpreted in accordance with the following descending order ofpriority:

1. 1. the SOW, in respect of any provisions of the SOW that by their express terms specifically override these Terms and Conditions;
  2. these Terms and Conditions; and
  3. the SOW (excluding any terms described in clause 3(e)(i) above).

In respect of any quotation provided by Cadgroup to the Customer for Services, the parties agree that no contractual obligation to provide such Services will arise until the quotation has been accepted and an SOW has been executed by the parties as contemplated by this clause.

Any services not expressly listed in an SOW are excluded and are not required to be provided by Cadgroup unless otherwise agreed by Cadgroup, and the Customer acknowledges and agrees that additional fees may be payable for any such additional services.

4. Services

Cadgroup will supply the Services described in the SOW in accordance with this Agreement.

A. Cadgroup will use reasonable endeavours to:

1. 1. supply the Services on or before the dates specified in the SOW including any Expected Go-Live Date, however theCustomer acknowledges and agrees that all such dates are estimates only and Cadgroup does not guarantee that the Services will be supplied by a particular date;
  2. ensure that the Services substantially conform to the Specifications;
  3. substantially comply with the Service Levels (if any) in the delivery of the Services;
  4. exercise due care, skill and judgement in the performance of the Services; and
  5. comply with all Laws in the performance of the Services.

B. The Customer must comply with and perform any obligations on the Customer set out in the SOW, and the Customeracknowledges and agrees that Cadgroup may be relying on the Customer performing those obligations and that Cadgroupmay be unable to perform (and may suspend) its obligations if the Customer fails to do so.

In respect of any quotation provided by Cadgroup to the Customer for Services, the parties agree that no contractual obligation to provide such Services will arise until the quotation has been accepted and an SOW has been executed by the parties as contemplated by this clause.

Any services not expressly listed in an SOW are excluded and are not required to be provided by Cadgroup unless otherwise agreed by Cadgroup, and the Customer acknowledges and agrees that additional fees may be payable for any such additional services.

5. Provision of Services

5.1 Software Services

A. Unless otherwise specified in the SOW, the Customer acknowledges and agrees that Cadgroup will only provide Services relating to the standard configuration of the software version purchased by the Customer. If the Services involve customisation of software, the Customer acknowledges and agrees that any warranty or representation made by Cadgroup in relation to the Services will only apply to the version of the software for which the Services were performed.
B. The Customer acknowledges and agrees that any software licensing arrangements for third-party software are between the Customer and the third-party supplier of that software (Vendor), and Cadgroup is not a party to any such arrangements. The selection of any such software or Vendor is a matter for the Customer, and Cadgroup will have no liability in relation to anysuch software or Vendor irrespective of whether Cadgroup assists with the procurement. If the Services involve customisation or any non-standard configuration performed by Cadgroup in relation to software supplied by a Vendor, the Customer acknowledges and agrees that if the Vendor modifies the software (such as by way of a new software version or update), then additional Services may be required to address changes to the software, and that such additional Services will be subject to additional service Fees.

5.2 Data Migration

If the Services include the provision of data migration by Cadgroup:

A. Cadgroup will migrate data from Customer’s existing services, systems or software (Legacy Data) in accordance with therequirements of the SOW and any agreed data migration plan;
B. When migrating the Legacy Data, Cadgroup will use reasonable precautions to ensure that there is no loss or corruption of the Legacy Data; and

unless expressly stated otherwise in the SOW or any agreed data migration plan, Cadgroup will have no liability to the customer for any loss, corruption or incompatibility of the Legacy Data, and the Customer will be solely responsible for arranging back-up of the Legacy Data prior to migration; and
Cadgroup will not be responsible for rectifying any errors or omissions in the migrated Legacy Data to the extent those errors or omissions were already contained in the Legacy Data, unless Cadgroup agrees to provide data remediation or cleansing services as part of the Services.

5.3 Training

If the Services include the provision of training by Cadgroup:

the training may be conducted at the Customer’s premises, or via online remote training;
the training may be conducted on a half-day (4 hour) or full-day (8 hour) basis as agreed by the parties, or on any other basis agreed by Cadgroup or specified in the SOW;
the Customer must provide all reasonable assistance and cooperation to Cadgroup in order for Cadgroup to provide the training, and must ensure its personnel also provide such assistance and cooperation;
if the training is to be conducted at the Customer’s premises, the Customer must ensure that Cadgroup is given safe access to the premises to provide the training;
Cadgroup may postpone or reschedule training at its discretion and will endeavour to provide the Customer with advance notice, and the Customer agrees that Cadgroup will have no liability in respect of any such changes (including any obligation to refund any Fees where training is rescheduled);
unless otherwise agreed in the SOW, all Fees for the training must be paid in full at least 7 days prior to the commencement of the training;
If the Customer cancels the training:

1. 1. within 7 days of the scheduled training, the Customer agrees to pay to Cadgroup a cancellation fee of 50% of the Fees for the training;
  2. within 2 days of the scheduled training, the Customer agrees that to pay the whole of the Fees for the training as a cancellation fee, and the Customer agrees that any such cancellation fees are a reasonable pre-estimate of the loss likely to be suffered by Cadgroup as a result of the cancellation.

5.4 Support Services

If the Services include the provision of Support Services by Cadgroup:

the Support Services will commence from the Support Start Date;
the Support Services will be provided in accordance with Cadgroup standard Service Level Agreement entered into by the parties; and
if the Support Services include the provision of “Hyper Care Support”, the parties will enter into a separate Hyper Care Service Level Agreement, which will supersede any existing Service Level Agreement or other support terms between the parties.

5.5 Hardware

If the Services involve the supply of hardware by Cadgroup to the Customer:

Once an order for hardware is submitted by the Customer to Cadgroup, it cannot be cancelled or varied by the Customer without Cadgroup’s consent (in Cadgroup’s sole discretion); and
Cadgroup will endeavour to supply the hardware to the Customer in accordance with the SOW and Cadgroup’s then-current terms and conditions of supply.

5.6 Technical Services

If the Services include the provision of Technical Services by Cadgroup:

the Customer agrees that upon completion of the Technical Services, the Customer must test the deliverables within two weeks from the date of customer hand-over to verify that the Technical Services comply with this Agreement and the applicable SOW. If the Customer does not conduct such tests or does not notify Cadgroup of the outcome of the tests within two weeks, the testing will be deemed to have been satisfied;
any modifications to the Technical Services or deliverables following the period referred to in 5.6(a) will be additional Services and incur additional Fees;
Cadgroup does not warrant or represent that any Technical Services will remain effective for any version of third-party software other than the version that the Technical Services were developed and deployed on; and
the Customer acknowledges and agrees that if the third party modifies the software (such as by way of a new software version or update) then additional Services may be required to address changes to the software, and that such additional Services may be subject to additional service Fees.

6. Fees and Payments

Any quotation for Services provided by Cadgroup to the Customer is valid only until the Quotation Validity Date and is deemed withdrawn if not accepted by that date.
Cadgroup may vary or withdraw a quotation by written notice to the Customer at any time prior to an SOW being executed in respect of the Services described in the quotation.

A. In consideration of the performance of the Services, the Customer will pay Cadgroup the Fees in accordance with the Payment Terms and this Agreement.
If an SOW specifies that the Fees will be calculated on time and materials or milestone basis, then:

1. 1. the Customer acknowledges and agrees that any fees set out in the SOW are an estimate only and are not guaranteed or binding on Cadgroup;
  2. the Customer must pay the Fees calculated in accordance with the hourly rates set out in the SOW; and
  3. Cadgroup may invoice the Customer monthly in advance prior to commencing the following milestone. Customer sign-off on completion of milestone will mark a completion of that work, whereas no additional work by Cadgroup is required.
  4. Further work on additional milestones is up to the discretion of Cadgroup if unpaid milestone(s) remain. Cadgroup has full right to suspend all work until in the rear’s milestone payments are paid in full.

B. If an SOW specifies that the Fees will be calculated on a fixed fee basis:

1. 1. the Fees will be fixed at the amount specified in the applicable SOW;
  2. unless the applicable SOW contains a specific payment schedule, Cadgroup will invoice the Customer the Fees on the milestones specified in the SOW (or if not specified, the full amount of the Fees on completion of the Services);
  3. any Services requested by the Customer and performed by Cadgroup outside the scope of the SOW will not be included in the fixed fees, may incur additional costs, and will require a change request signed by both parties prior to the commencement Services commencing.

If the Support Services under an SOW include “Hyper Care Support”, the Fees will be invoiced monthly in advance, and the Support Services will not be provided to the Customer until the applicable Fees have been paid.
If the Customer fails to pay an undisputed invoice by the due date, Cadgroup may suspend the provision of all or any Services to the Customer (including under another SOW) until all outstanding amounts are paid in full, and Cadgroup will bear no liability in connection with any such suspension.

6.2 Travel Charges

In addition to the Fees, Cadgroup may include on its invoice, and the Customer must pay, any out-of-pocket travel or hardware expenses incurred by Cadgroup in the course of providing the Services, provided that such expenses are:

specified in the applicable SOW or authorised under this clause 6.2; or
approved by the Customer prior to being incurred.

Unless otherwise specified in the SOW, Cadgroup will be entitled to charge for the travel expenses incurred by each Cadgroup staff member on the following basis:

for travel by car, $0.88 per kilometre travelled and a per diem of $140 per day if an overnight stay is required;
airline tickets, hotel or other accommodation costs, and car rental costs incurred by the staff member on a “pass-through” basis (without markup), in respect of which Cadgroup will endeavour to procure these at reasonably competitive rates;
incidental expenses including for parking, tolls, rental cars, fuel, baggage fees, taxis, internet access and other expenses will be charged on a “pass-through” basis (without markup).

The Customer acknowledges and agrees that travel expenses may not be refundable in the event of cancellation or postponement of Services, and Cadgroup will not be liable to the Customer in respect of any such costs. Cadgroup will use reasonable endeavours to recoup the costs incurred and/or apply the costs to the rescheduled date for the Services.

If Services are required to be provided on-site by their nature or at the Customer’s request, the time required by Cadgroup personnel to travel between Cadgroup’s office and the Customer’s location will be charged at the applicable standard rates set out in the SOW or otherwise notified by Cadgroup to the Customer (with a minimum charge of 45 minutes). Unless otherwise agreed, travel time will be calculated using the one-way travel time between the Cadgroup office and Customer’s location according to Google Maps and rounded up to the nearest 15 minutes.

7. GST

A. Unless otherwise stated, the amounts payable by the Customer to Cadgroup under this Agreement do not include any GST.
B. The Customer must pay Cadgroup an additional amount on account of GST equal to the amounts payable by the Customer for the supply multiplied by the prevailing GST rate (at the same time and in the same manner as those amounts).

8. Acceptance testing

Cadgroup and the Customer must comply with the acceptance testing procedure as set out in the SOW, or as otherwise agreed by the parties.

A. The Customer must follow Cadgroup’s reasonable directions in relation to the performance of the acceptance testing.
If Cadgroup reasonably considers that the acceptance testing procedure has not been completed adequately by the Customer, Cadgroup may have duty of care to require the delay of Expected Go-Live Date and/or other Services until the acceptance testing has been adequately completed.

9. Default and termination

This Agreement may be terminated by either party by written notice to the other party if that other party:

1. 1. commits a breach of any of its obligations under this Agreement and such breach is incapable of remedy or has not been remedied within 21 days after receiving written notice advising it of such breach; or
  2. becomes subject to an Insolvency Event.

If the Services under an SOW include an “implementation phase”, the Customer may terminate that SOW during the implementation phase if the Customer decides that the Services being delivered are no longer required. In that case, the Customer must pay to Cadgroup the Fees for all services rendered prior to termination, and any unavoidable costs incurred by Cadgroup in relation to the Services or as a result of termination.

Upon notice of termination of any SOW:

1. 1. the Customer must immediately pay all amounts due to Cadgroup under that SOW for work performed prior to termination;
  2. the Customer must cease all use of any intellectual property or other materials licensed to the Customer by Cadgroup in connection with the Services under that SOW;
  3. Cadgroup will provide any Transition-Out Services required under that SOW, and the Customer must comply with its obligations with respect to such Transition-Out Services (including the payment of any fees);
  4. the Customer must return all Confidential Information or other property of Cadgroup that is in the Customer’s possession or control; and
  5. for the avoidance of doubt, unless the Agreement or SOW is terminated by the Customer under clause 8(a), Cadgroup is not required to refund or repay in whole or in part any advance payments made by the Customer.

10. Liability and indemnities

A. Nothing in this Agreement operates to exclude, limit or modify the application of any statute (including the CCA) where to do so would be unlawful, contravene that statute or cause any part of this clause to be void.
B. Subject to the above and to the extent permitted by law, Cadgroup:

1. 1. excludes all terms, conditions, warranties and guarantees implied or imposed by statute, Law or other source external to this Agreement (including as to the description, merchantable quality or fitness for purpose of the Services);
  2. except for liability expressly assumed under this Agreement (including under any indemnity), excludes all liability whatsoever, whether under statute, contract, for negligence or other tort, or otherwise, arising out of, in relation to or in connection with this Agreement, the Services or the use or enjoyment of the Services; and
  3. limits any liability which cannot be excluded or limited under the other provisions of this clause to, at Cadgroup’s option, supplying the Services again or paying the cost of having the Services supplied again.

C. In any case, Cadgroup’s liability for any claim arising out of, in relation to or in connection with this Agreement or any Services will not exceed the total amount paid by the Customer to Cadgroup under the SOW to which the claim relates.

Neither party will be liable to the other for any indirect, special, incidental, economic or consequential loss or damage arising out of or in connection with this Agreement, including loss of revenue, income, profits, data, goodwill, business, opportunities or anticipated savings.
The Customer acknowledges and agrees that if Cadgroup fails to meet an applicable Support Service Level (SLA) response time, then the Customer’s sole and exclusive remedy for such failure will be credit of hours or token consumed by Cadgroup specific to that support case.

The Customer will indemnify and keep indemnified Cadgroup and its personnel from and against any and all claim, loss or damage arising directly or indirectly as a result of or in connection with any:

1. 1. injury to, death of, or damage to or loss of any property of, any person caused by the acts or omissions of the Customer or its personnel;
  2. damage to or loss of any property in the Customer’s possession or control (including any Cadgroup property);
  3. breach of the law or this Agreement by the Customer or its personnel;
  4. act or omission (including negligent act or omission) of the Customer or its personnel;
  5. Cadgroup enforcing or protecting or attempting to enforce or protect its rights under this Agreement.

D. The Customer’s liability to indemnify Cadgroup under clause 10(f) will be reduced to the extent that Cadgroup caused or contributed to the relevant liability.
E. The indemnities under clause 10(f) may be enforced by Cadgroup on behalf of any persons specified as entitled to the benefit of those indemnities, and Cadgroup holds the benefit conferred by this clause on trust for those persons, jointly and severally.

11. Confidentiality

A. The Customer must keep confidential, and not directly or indirectly disclose, any Confidential Information, except:

1. 1. to a representative of the Customer who has a need to know (and only to the extent it has a need to know) specific Confidential Information and who has been instructed by the Customer to keep the Confidential Information confidential on terms substantially equivalent to this clause;
  2. where legally compelled to do so, provided that the Customer notifies Cadgroup prior to the disclosure (unless legally prevented from doing so) and cooperates with Cadgroup’s reasonable instructions concerning the disclosure including with regard to taking any lawful steps to resist disclosure and maintain the confidentiality of the Confidential Information; or
  3. where Cadgroup has consented in writing.

B. The Customer must procure that any person to whom it discloses Confidential Information complies with clause 10(a) as if that other person were the Customer.
C. The Customer acknowledges that Cadgroup may seek an injunction or other relief if the Customer or a person to whom it discloses Confidential Information breaches or threatens to breach the confidentiality of the Confidential Information.
D. Nothing in this Agreement conveys or grants to the Customer any interest of a proprietary or any other nature in the Confidential Information.
E. Cadgroup makes no representation as to the accuracy or completeness of the Confidential Information or any other information disclosed to the Customer by Cadgroup.
F. The Customer must notify Cadgroup immediately it becomes aware of any breach of confidentiality regarding the Confidential Information and must take all reasonable steps necessary to prevent further unauthorised use or disclosure of that Confidential Information.
G. The Customer must, promptly upon request from Cadgroup when Confidential Information is no longer required or permitted to be used by the Customer, cease all use of, provide to Cadgroup, and (if instructed to do so by Cadgroup) delete or destroy and certify in writing to Cadgroup the deletion or destruction of, all Confidential Information in its possession, custody or control.
H. This clause 10 will survive the expiry or termination of this Agreement.

12. Intellectual Property

A. Unless otherwise expressly stated in this Agreement or agreed by the parties in writing, each party retains ownership of its intellectual property, and neither party transfers or assigns, or grants any ownership rights in respect of, any intellectual property to the other party or otherwise.
B. Subject to payment of the Fees, Cadgroup grants to the Customer a non-exclusive, non-transferable licence, without the right to sublicense, any intellectual property in any materials provided to the Customer in the course of providing the Services.
The Customer grants Cadgroup a licence to use the Customer’s name and trademark in the course of Cadgroup promoting its Services, subject to any reasonable directions notified by the Customer to Cadgroup regarding any such use.

13. Dispute Resolution

A. A party must not commence any court proceedings (other than proceedings for urgent injunctive or interlocutory relief) in respect of a dispute arising in connection with this Agreement (Dispute) until it has complied with this clause.
B. A party claiming that a Dispute has arisen must notify the other party to the Dispute in writing, giving details of the Dispute.
C. During the 10 Business Day period after a notice is given under clause 13(b) (Initial Period) each party must use its best efforts to resolve the Dispute.
C. If the parties are unable to resolve the Dispute within the Initial Period (or any extension of that period agreed in writing) then:

1. 1. they must within a further 7 days appoint a mediator to mediate the Dispute; or
  2. if the parties fail to agree on a mediator within that time, either of them may refer the Dispute for mediation to a mediator nominated by the then current president of the Law Society of New South Wales,

and the parties must thereafter mediate the Dispute.
E. The terms on which the mediation is conducted and the procedure for the mediation will, unless otherwise agreed in writing between the parties and the mediator, be those prescribed by the Rules and Practice Directions of the Supreme Court of New South Wales from time to time.
F. Unless otherwise agreed in writing between the parties the mediation will be conducted in Sydney, New South Wales, Australia.
G. Each party must bear its own costs of resolving the Dispute under this clause and, unless the parties otherwise agree, the parties must bear equally the costs of any mediator engaged for that purpose.

14. Corporate Terms

A. Each party represents and warrants that:

1. 1. it has full corporate power to enter into and give effect to this Agreement and the transactions contemplated by this Agreement;
  2. it has taken all necessary action to authorise the execution, delivery and performance of this Agreement;
  3. at the Commencement Date, the execution, delivery and performance of this Agreement does not contravene any contractual, legal or other obligations that apply to it; and
  4. the obligations under this Agreement are valid, binding and enforceable on it.

Cadgroup will at its own expense maintain during the term of this Agreement professional indemnity insurance for not less than $2m for any single occurrence.
B. If there is a change in:

1. 1. (if the Customer enters into this Agreement as trustee of a trust) the trustees of that trust;
  2. (if the Customer is a partnership) the partners of that partnership; or
  3. (if the Customer is a body corporate) the officers of that body corporate,
  4. the Customer must notify Cadgroup within 2 Business Days of that change
  5. Where the Customer is a trustee of a trust, the Customer:
  6. acknowledges that this Agreement is binding on it personally and in its capacity as trustee;
  7. warrants that:

1. 1. 1. 1. it is the sole trustee of the trust;
      2. it is authorised by the trust deed to enter into this Agreement and to perform its obligations under this Agreement;
      3. it is not in default under the deed establishing the trust and, during the Term, it will not commit a default under that trust deed;
      4. there are no limitations on the right of the Customer to be indemnified out of the assets of the trust and during the term of this Agreement it will not suffer any limitation on its right of indemnity or subrogation; and
      5. during the term of this Agreement, the trust deed will not be altered or varied or revoked without Cadgroup’s consent (which will not be unreasonably withheld provided that the change does not have any potential adverse or prejudicial consequences for Cadgroup).

15. Force Majeure

A. Neither party will be liable for any delay or failure to perform its obligations pursuant to this Agreement (other than an obligation to make payment) if such delay or failure is due to Force Majeure.
B. If a delay or failure of a party to perform its obligations is caused or anticipated due to Force Majeure, then the performance of that party’s obligations will be suspended and that party must give the other party written notice specifying the Force Majeure, the effect of the Force Majeure, and any other information reasonably required by the other party.
C. The party whose performance is delayed or prevented by Force Majeure must make all reasonable efforts to minimise the effects of the Force Majeure event.

16. General

A. A notice, demand, consent, approval or communication under this Agreement (Notice) must be in writing, legible and in English, addressed to the recipient’s address set out in this Agreement (as may varied by any Notice by that recipient), and hand delivered or sent by prepaid post or email to that address.
B. A Notice given in accordance with clause 15(a) takes effect when received (or at a later time specified in it), and is taken to be received:

1. 1. if hand delivered, on delivery;
  2. if sent by prepaid post, 5 Business Days after the date of posting;
  3. if transmitted by email, on the day of transmission, provided that the sender does not receive an automated notice generated by an email server indicating that the email was not delivered,

but if the delivery, receipt or transmission is not on a Business Day or is outside Business Hours, the Notice is taken to be received at the commencement of Business Hours on the following Business Day.
C. Except as expressly stated otherwise in this Agreement, each party must pay its own legal and other costs and expenses of negotiating, preparing, executing and performing its obligations under this Agreement.
D. The Customer acknowledges and agrees that Cadgroup may subcontract the performance of all or part of its obligations under this Agreement or any SOW.
E. This Agreement is governed by and is to be construed in accordance with the laws applicable in New South Wales and each party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts of New South Wales and any courts which have jurisdiction to hear appeals from any of those courts and waives any right to object to any proceedings being brought in those courts.
F. Nothing in this Agreement constitutes, or will operate to create, a franchise, joint venture, a relationship of employer and employee, a relationship of agency or a partnership.
G. If a provision of this Agreement is illegal or unenforceable in any relevant jurisdiction, it may be severed for the purposes of that jurisdiction without affecting the enforceability of the other provisions of this Agreement, unless severing the provision materially alters the scope and nature of this Agreement, or the relative commercial or financial positions of the parties, or would be contrary to public policy.
H. Each party must promptly do whatever any other party reasonably requires of it to give effect to this Agreement and to perform its obligations under it.
I. Except as expressly stated otherwise in this Agreement, a party may conditionally or unconditionally give or withhold consent to be given under this Agreement and is not obliged to give reasons for doing so.
J. Except as expressly stated otherwise in this Agreement, the rights of a party under this Agreement are cumulative and are in addition to any other rights of that party.
K. A single or partial exercise or waiver by a party of a right relating to this Agreement does not prevent any other exercise of that right or the exercise of any other right. A party is not liable for any loss, cost or expense of any other party caused or contributed to by the waiver, exercise, attempted exercise, failure to exercise or delay in the exercise of a right.
L. Any provision expressly stated or by its nature intended to survive expiry or termination of this Agreement survives expiry or termination of this Agreement.
M. This Agreement may only be varied or replaced by an Agreement executed in writing by the parties.
Neither party may assign its interest in this Agreement without the prior written consent of the other party, and any purported dealing in breach of this clause is void and of no effect.
N. This Agreement may consist of a number of counterparts and, if so, the counterparts taken together constitute one agreement, and each party consents to electronic execution of this Agreement by the other party.
This Agreement contains the entire understanding between the parties as to the subject matter of this Agreement. To the extent permitted by law, all previous negotiations, understandings, representations, warranties, memoranda or commitments concerning the subject matter of this Agreement, including any service offering or solution design, are merged in and superseded by this Agreement and are of no effect, and neither party is liable to the other in respect of those matters.
O. Nothing in clause 15(p) excludes, limits or otherwise modifies any non-excludable rights arising under the Australian Consumer Law.

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