cesar Pty Ltd (ACN 123 867 587) (cesar) provides pestIQ and pestIQ PLUS+ services on these terms and conditions. By receiving the services you agree that you and your employer (if you receive the services as part of your employment) (you) are bound by these terms and conditions.
1.1 cesar will provide:
1.1.1 if you select the “pestIQ” service package: access to a secure client website which centralises knowledge, data and research on insects in Australian broad-acre crops; or
1.1.2 if you select the “pestIQ PLUS+” service package: access to a secure client website which centralises knowledge, data and research on insects in Australian broad-acre crops; access to a limited number of identifications for any broad-acre invertebrate, and access to a limited number of hours of email and phone support with a cesar expert.
1.2 cesar may add services to each service package from time to time (in its sole discretion).
1.3 cesar may allocate any staff or consultant of cesar to perform any part of the services and may replace any personnel named by cesar with personnel of similar skill.
2. Client responsibilities
2.1 You are responsible for determining that the services are sufficient to meet your needs.
2.2 You agree that you will:
2.2.1 provide all information that cesar requires to enable cesar to provide you the services;
2.2.2 provide information that is true, correct and not misleading;
2.2.3 use the results of the services only for the purpose for which the services are provided;
2.2.4 advise all cesar personnel who visit your premises of what is required of them in relation to health and safety, such as use of safety equipment and emergency evacuation procedures.
2.3 cesar will rely on any information you provide and will not verify that information.
3. Reliance on cesar’s work
3.1 You may only rely on any final written report issued by cesar or other final product of the services that is developed by cesar specifically for you (and not generally for all its clients). Any oral comments, emails, drafts of written reports or any other communications made prior to any final written report or product do not represent the final conclusions of cesar and should not be relied upon.
4. Disclosure of cesar’s work
4.1 You must not disclose any report or other information provided as part of the services or obtained by you from cesar in connection with the services to any other person without cesar’s prior written consent.
4.2 The services are provided for your use only and cesar accepts no responsibility or liability to any other person or company.
4.3 All working papers cesar produces in the course of providing the services are the property of cesar and cesar has no obligation to disclose the working papers to you or to any other person.
5. Online content
5.1.1 download or make copies in any form of all or parts of the website content;
5.1.2 publish, communicate or adapt any information or content accessible on the website;
5.1.3 adapt, translate, reverse engineer, dissemble or decompile the website or any part of the website;
5.1.4 remove any copyright, trade mark or proprietary rights notices contained in or on the website; or
5.1.5 reformat or frame any part of the web pages that form part of the website;
5.2 You must ensure all passwords used by you or your personnel to access the website are kept secure and are not provided to any third party.
6. Fees and expenses
6.1 The services may be provided to you by cesar for a trial period of seven days (or as otherwise agreed with cesar in writing) at no charge (trial period).
6.2 At any time during the Trial Period, or after the Trial Period, you may choose to subscribe to the services on a fee paying basis at the fee level selected by you. The current fee level is available at: www.pestIQ.com.au.
6.3 When you choose to subscribe to the services, you will be invoiced to receive the services for a 12-month period (contract year).
6.4 cesar will invoice you before the end of each contract year to renew your subscription for a further 12-month period (each renewal also a “contract year”). cesar may increase or decrease your cost of each fee level at this time.
6.5 All expenses in connection with the services are included in the fee (unless otherwise agreed with cesar in writing).
6.6 All invoices issued by cesar must be paid within 14 days of the date of invoice. If payment is not received, cesar reserves the right to suspend provision of the services and/or charge interest on the outstanding amount on a daily basis at a rate for the time being fixed under section 2 of the Penalty Interest Rates Act 1983 (Vic).
6.7 Any quotes or fee estimates cesar provides are not contractually binding.
6.8 Unless otherwise expressly stated, all amounts stated under this agreement are expressed to be exclusive of GST. If GST is payable on a taxable supply the price payable for that taxable supply will be increased by an amount equal to the amount of GST payable on the relevant taxable supply.
7. Term and termination
7.1 You can terminate this agreement by cancelling the services at any time for any reason by providing cesar written notice. If you cancel the services, you agree to provide cesar with your reasons for cancellation. There will be no reimbursement of the fee if the services are cancelled by you during a contract year.
7.2 cesar may terminate this agreement at any time for any reason by providing you written notice. In the event that cesar terminates this agreement, its liability is limited to refunding to you the subscription fee on a pro-rata basis.
7.3 Subject to clause 19.1, these terms and conditions apply for each contract year.
8.1 cesar’s liability for any loss or damage that you suffer that is caused by cesar’s breach of contract, tort (including negligence), breach of fiduciary duty or other actionable wrong of any kind shall be limited as follows:
8.1.1 cesar has no liability for any consequential or indirect loss or damage or loss of profit;
8.1.2 cesar’s liability will be reduced to the extent of any contributory negligence on your part;
8.1.3 in the event that more than one person caused or contributed towards your loss or damage, cesar’s liability to you will be limited to the proportion that is reasonably apportioned to cesar by law, based on an assessment of cesar’s degree of responsibility and the responsibility of others who contributed towards the loss or damage (whether or not those persons are able to meet any liability they may have);
8.1.4 cesar’s liability for all loss or damage in connection with this agreement will in no circumstance exceed the amount of the total fees paid for the services by you in the 12 months immediately preceding the claimed event.
9. Time limit for claims
9.1 No legal proceedings may be commenced later than 12 months after the date on which the party bringing the claim became aware, or ought reasonably to have become aware, of the facts giving rise to the claim.
9.2 In any event, no legal proceedings may be commenced more than two (2) years after the date on which the facts giving rise to the claim occurred.
10.1 You indemnify, and agree to keep indemnified, cesar, its staff and consultants against any liabilities, losses, expenses and other costs incurred in connection with your breach of contract, tort (including negligence), breach of fiduciary duty or other actionable wrong of any kind. This indemnity includes any claims made against cesar, its staff and consultants by any third party.
11.1 Both parties agree that information or documents that are marked confidential (or are clearly treated by the other party as confidential) that are received by or provided to the other in connection with the provision of the services or this agreement will be treated as confidential except if the information:
11.1.1 is or becomes generally available to the public other than by a breach of the obligations under the agreement;
11.1.2 is known to the parties prior to entering the agreement; or
11.1.3 is received from a third party who owes no obligation of confidence in respect of the information.
11.2 You agree that cesar may disclose your confidential information for the purpose of providing the services such as to cesar’s personnel (including staff, consultants and contractors), and to cesar’s insurers or legal advisers, or as otherwise required by law.
11.3 You accept and agree that all content made available on cesar’s secure client website, and any information in emails from cesar or written reports by cesar, is confidential and provided for the your use only and must not be disclosed to any third party without cesar’s prior written consent.
11.4 The terms of this agreement are confidential.
12. Intellectual property rights
12.1 Intellectual property rights (whether or not such rights are capable of registration) in all documentation, systems, materials, methodologies, trademarks, designs, patents, processes and know-how brought to and utilised by cesar in relation to the services or created in the course of providing the services, and in all working papers and reports, remain vested in cesar.
12.2 You retain ownership of any intellectual property rights owned by or licensed to you before the services are commenced. You permit cesar to use any such intellectual property that you make available to cesar, or which becomes known to cesar, for the purposes of providing the services and as otherwise permitted by this agreement.
12.3 You are permitted to use any final written report, other final product of the services or any draft report provided to you by cesar for your own internal business purposes only.
12.4 Any material or know-how developed in the course of this agreement may be used in any way cesar deems appropriate, including by or for other clients of cesar, without any obligation to you except for the requirement to keep confidential information confidential.
12.5 For the purpose of this agreement, “know-how” means all information not in the public domain including drawings, designs, photographs, videos, computer programs, data, formulae, specifications, procedures for experiments and tests, results of experiments and tests, techniques and information.
13. After this agreement ends.
13.1 Any other term by its nature intended to survive termination of this agreement survives termination of this agreement.
13.2 Termination of this agreement for whatever reason will be without prejudice to any accrued rights or remedies of either party.
14. Complaints or disputes
14.1 Should you not be satisfied with the services, cesar kindly requests that you contact cesar’s Operations Manager at firstname.lastname@example.org or on +61 3 9349 4723.
14.2 In the event that a dispute arises, the parties will attempt to resolve it in good faith by senior level negotiations (this may include mediation using the services of an agreed mediator).
14.3 This contract is governed by the law in the State of Victoria, Australia.
15. Circumstances outside the control of the parties
15.1 Neither party will be liable to the other for any failure to fulfill obligations caused by circumstances outside its reasonable control (except the obligation to make payment under clause 6).
16. Additional work
16.1 Any further work cesar may carry out at your request that is not included as part the services (as defined in clause 1.1) will be carried out as part of this agreement, unless otherwise agreed in writing.
16.2 Any additional work that cesar carries out under this agreement will be charged at the fixed fee or other rate agreed by the parties in writing before provision of the additional work.
16.3 You agree to reimburse cesar for any reasonable expenses cesar incurs directly from provision of the additional work you requested. cesar will advise you of such expenses at your written request.
16.4 You may terminate any additional work you requested by providing cesar written notice. You will pay cesar for all services provided up to the date of termination. In the event you terminate the agreement before cesar has completed the requested services, you will also pay cesar any additional costs that it incurs in connection with the early termination.
17. Other engagements.
17.1 Nothing in this agreement prevents cesar from providing services to other clients provided that cesar takes reasonable steps to ensure that each client’s confidential information is not disclosed to other clients.
18.1 Neither party may assign, transfer, charge or otherwise deal with its rights or obligations under this agreement without the prior written consent of the other party.
19.1 This agreement may only be varied in writing and signed by both parties.
20. Entire agreement
20.1 To the extent permitted by law, all warranties, conditions, representations and liabilities or terms other than those expressly stated are excluded from this agreement.
20.2 If any term of this agreement is held to be invalid the enforceability of the remainder of the agreement will not be affected.