- Entire Agreement
The contract is comprised of:
- Monarc’s proposal;
- these Terms & Conditions of Sale; and
- any other document signed by the parties or expressed to be forming part of this contract,
The parties warrant that in entering into this Contract they have not relied upon any prior oral or written representation or warranty which is not expressly included in the Contract.
In the event of there being any ambiguity, discrepancy, or inconsistency of any nature between the documents comprising the Contract, the order of precedence to be applied to resolve the ambiguity, discrepancy, or inconsistency is the order in which the documents are listed above.
Unless otherwise stated, all monetary amounts stated in this Contract are exclusive of the GST. Any GST amount which may be required to be paid is to be paid to Monarc in addition to the relevant monetary amount otherwise stated in the Contract.
- Payment Terms
Unless otherwise stated in Monarc’s proposal, Monarc is entitled to submit a claim for a progress payment on the last business day of each calendar month in respect of the services supplied. Payment to Monarc of the claimed amount is to be made within 30 days of receipt of the claim for a progress payment.
Monarc is to be provided with such site access or other access as it may reasonably require to supply any services.
- Extension of Time
Monarc is entitled to an extension of time to any date by which it is required to supply any services equal to the period of any delay which it may suffer arising from, or in any way connected with:
- any action or inaction of any entity other than Monarc; or
- any event outside the control of Monarc.
This entitlement to an extension of time applies despite any delay or failure to provide any notice to any other party or entity which may otherwise be required under the other documents forming part of the Contract.
- Limitation of Liability
Notwithstanding any other clause or statement in any of the documents forming part of the Contract, Monarc’s maximum aggregate liability under or in any way connected with the Contract (including, without limitation, any liability for any claim at common law (including, without limitation, breach of contract, and negligence), in equity, or under statute) is limited to the greater of:
- the cost of:
- resupplying the services (if any) supplied under the Contract; and
- replacing the goods (if any) supplied under the Contract; or
- the amount recovered by Monarc pursuant to any policy of insurance maintained pursuant to this Contract.
Notwithstanding any other clause or statement in any of the documents forming part of the Contract, and to the fullest extent permissible at law, neither party will in any event whatsoever be liable to the other party for any Consequential Loss.
In this clause ‘Consequential Loss’ means any consequential, indirect, special, exemplary, or punitive damages, including any loss of production, loss of revenue, loss of profit or anticipated profit, loss of business reputation, business interruptions of any nature, loss of opportunities, loss of anticipated savings or wasted overheads.
This clause survives termination of the Contract.
- Intellectual Property
Any intellectual property created by or as a result of the supply of any services under the Contract (“Created IP”) is and remains the property of Monarc. Monarc grants the Principal a non-exclusive, royalty-free, perpetual, and non-transferrable licence to use the Created IP for the purposes of enjoying the benefits of the Contract.
Monarc will maintain for the duration of this Contract the following insurances:
- public liability insurance, in the amount of $20,000,000 any one occurrence;
- professional indemnity insurance, in the amount of $10,000,000 any one claim and limited to $20,000,000 in the aggregate for all claims; and
- workers’ compensation insurance, as required by law.
In addition to any statutory warranties, Monarc provides a warranty in respect of all services supplied for the period of 12 months following completion of the supply of the services. If there are any defects or omissions with the services during the warranty period, Monarc must be provided with a reasonable opportunity to rectify or complete any such services.
- Variation of Terms
These Terms & Conditions of Sale may only be varied in writing signed by the parties or their relevant representatives.
Any waiver of any right or obligation under the Contract can only be done in writing signed by the relevant party. No action, other than an action to waive in writing any right or obligation, or inaction by Monarc will constitute any waiver of any right or obligation under the Contract.
If any part of these Terms & Conditions of Sale is held to be invalid, unlawful, or unenforceable in any way and for any reason, these Terms & Conditions of Sale will continue to apply to the fullest extent possible save and except for the part which is held to be invalid, unlawful, or unenforceable.
The parties are to treat all information obtained under, or in relation to, the Contract as confidential. The obligation of confidentiality does not apply to the extent that any disclosure is required by law or by a stock exchange listing rule, if the information is otherwise in the public domain, or as agreed to in writing between the parties.
In the event of any there being any default of payment due to Monarc, or any risk to the health and safety which cannot be mitigated or controlled, Monarc may immediately suspend the carrying out of work. Monarc will not be required to resume work until 7 days after the reason for suspension has been remedied.
Either party is entitled to immediately terminate the Contract by the giving written notice in the following circumstances:
- if any other party fails to comply with any of its obligations under the Contract and, in the event that the failure is capable of being rectified, fails to remedy the failure to comply within 14 days of receipt of written notification of the default; or
- if any other party is insolvent, becomes bankrupt, or becomes subject to any official management, receivership, liquidation, voluntary administration, winding up, or external administration.
In the event of any termination under this clause, Monarc is entitled to be paid for all services provided up to the date of termination.
- Applicable Law
The Contract is governed by the laws of Victoria. The parties irrevocably elect to accept the jurisdiction of the Victorian Courts (including all Federal Courts), and to commence any proceedings in such Courts.