Terms and Conditions
These Terms and Conditions form a part of the engagement of
Essencion P/L (ABN 17 110 230 209) trading as SCHMECHEL (hereinafter ‘SCHMECHEL’ )
1. SATISFACTION GUARANTEE
I am certain that you will benefit from your engagement of SCHMECHEL’s services. However, if you – after working with me for 10 business days – are not completely satisfied, please return any materials and documents (e.g. project outline, design drafts) received in relation to the Services and notify us by email within 12 business days of the commencement of this agreement. I will then refund the total amount you have paid. This refund is only applicable if SCHMECHEL is notified at this point in the process of the project.
All prices in my Quotes are in Australian dollars, exclusive of GST and are payable as per the Quote.
3. ORDER ACCEPTANCE
Purchase Orders are subject to formal acceptance in writing (via email or by letter) by SCHMECHEL. SCHMECHEL will use commercially reasonable efforts to confirm or reject any Customer Purchase Orders within five (5) business days of receipt by SCHMECHEL.
4. PAYMENT TERMS
(a) SCHMECHEL will invoice the Customer for each project step as outlined in the Quote. The amount invoiced will include the price of the Services plus all applicable taxes, fees, transportation, and other fees or charges.
(b) Unless otherwise specified, payments are due seven (7) days after the date of invoice.
(c) Any unpaid due amounts will be subject to interest at 1.5% per month, or, if less, the maximum rate allowed by law.
(d) SCHMECHEL shall not be liable under any warranty stated herein if the purchase price has not been paid in full.
5. INSTALLATION AND SUPPORT
Following acceptance of the Quote, Schmechel must: perform its Services in accordance with the Quote, report the results of its work to the Customer in reasonable intervals. The time provided in the Quote for completion of the Project shall be increased by the aggregate number of Business Days of delay due to Force Majeure.
Schmechel must use reasonable endeavours to provide the Customer with support in accordance with the response and resolution times set out in the Quote, and ensure the support services are provided in a professional manner. If the Customer requests training or support beyond the support, the specific terms of such training and support must be agreed by the parties prior to it taking place and the Customer will be required to bear all associated reasonable costs of Schmechel for the provision of such training and support.
6. THE CUSTOMER CHANGE ORDER AND CANCELLATION
Any and all changes to the Customer’s Purchase Orders must be provided by written (mail or e-mail) notice from the Customer. Any changes of the order or other project amendments are subject to acceptance by SCHMECHEL.
7. CANCELLATION FOR DEFAULT
SCHMECHEL may, upon written notice to The Customer, cancel any or all the Customer Purchase Orders effective immediately if:
(i) The Customer fails to perform any material obligations and such failure is not remedied within fifteen (15) calendar days after notice has
(ii) The Customer fails to pay for purchases in accordance with the terms stated herein;
(iii) The Customer: ceases doing business as a going concern; makes an assignment for the benefit of creditors; is unable to pay its debts as they become due; files a voluntary petition in bankruptcy; is adjudicated to be a bankrupt or insolvent debtor; files a petition seeking for itself any reorganization; or consents or acquiesces in the appointment of a trustee, receiver or liquidator.
Any cancellation pursuant to this clause will be in addition to and not in lieu of any other remedies available to SCHMECHEL at law or in equity.
8. LIMITATION OF LIABILITY
Except in relation liability for personal injury (including sickness and death) SCHMECHEL shall be under no liability to the Customer in respect of any loss or damage (including consequential loss or damage) which may be suffered or incurred or which may arise directly or indirectly in respect of goods or services supplied pursuant to this agreement or in respect of a failure or omission on the part of SCHMECHEL to comply with its obligations under this agreement.
The Customer warrants that it has not relied on any representation made by SCHMECHEL which has not been stated expressly in this agreement or upon any descriptions, illustrations or specifications contained in any document including catalogues or publicity material produced by SCHMECHEL.
The Customer acknowledges that, to the extent SCHMECHEL has made any representation which is not otherwise expressly stated in this agreement, the Customer has been provided with an opportunity to independently verify the accuracy of that representation.
The Customer acknowledges that the provisions of this clauses are fair and reasonable because it retains responsibility for testing the results of all Services provided to it by SCHMECHEL before implementing them in its business.
Terms and Conditions (updated 14/9/2021) SCHMECHEL Page 2
9. ACCEPTANCE OF SERVICES
The acceptance of services shall occur immediately upon completion and installation unless the Customer provides written notification of non-conformity within 15 calendar days of completion.
10. SUB CONTRACTS / EMPLOYEES
SCHMECHEL may sub-contract for the performance of this agreement or any part of this agreement. Schmechel will provide sufficient suitably trained and skilled Employees to enable it to perform its obligations in accordance with this agreement.
11. GOVERNING LAW
This Agreement will be governed by and construed according to the law of New South Wales.
12. FORCE MAJEURE
SCHMECHEL will be excused from any obligation to the extent performance thereof is prevented by acts of God, fire, flood, riots, material shortages, strikes, governmental acts, disasters, earthquakes, inability to obtain labour or materials through its regular sources, or any other cause beyond SCHMECHEL’s reasonable control.
13. CONFIDENTIAL INFORMATION
The Customer acknowledges that Products contain a combination of trade secret, know-how, patent, proprietary, and confidential information of a commercial or technical nature (“Confidential Information”), and are valuable property of SCHMECHEL. The Customer agrees to protect confidential Information with the same confidentiality protections as are used, or should be used, for its own confidential information, and in any case, shall make the best commercial effort to protect such Confidential Information. Confidential Information is and remains the sole property of SCHMECHEL (or its licensors, if any). The Customer shall not reverse engineer any Products.
14. INTELLECTUAL PROPERTY
The Customer acknowledges that all Intellectual Property Rights in works produced by SCHMECHEL or by third parties at the instance of SCHMECHEL will belong to SCHMECHEL or those third parties respectively. SCHMECHEL shall grant the Customer a perpetual, non-exclusive and non-transferable licence to use the developed software solution. If requested by SCHMECHEL, the Customer shall issue a notice in a form approved by SCHMECHEL to all Employees and other authorised users of the works referred to in this clause who are under the customer’s direction or control, advising such persons of the Customer’s obligations under this clause and also advising of the possible civil and criminal consequences of a breach of this clause.
15. LICENSE AGREEMENTS
Notwithstanding anything to the contrary herein, to the extent the Services are delivered with a SCHMECHEL or third party product license agreement(s) (the “License Agreement(s)”), the terms and conditions of such License Agreement(s) shall apply in addition to the terms and conditions set forth herein. To the extent there is a conflict between the terms and conditions of such License Agreement(s) and those set forth herein, the term or condition set forth in the License Agreement(s) shall govern in all cases. Nothing herein shall be construed to grant an rights or license to use any Product or other intellectual property in any manner or for any purpose not expressly permitted by the License Agreement.
The benefit of this agreement shall not be assigned or novated by either party without the other’s written consent.
If at any time any provision or part of this agreement is deemed to be or becomes void, voidable, invalid or otherwise unenforceable in any respect, that provision or part shall be deemed to be severed from this agreement to the extent that it is void or to the extent of voidability, invalidity or unenforceability but the remaining provisions hereof shall in no way be affected or impaired thereby.
18. SURVIVAL OF AGREEMENT
The termination or cancellation of any the Customer Purchase Order shall not affect the parties’ obligations and rights hereunder which by their nature should be understood to survive such termination or cancellation.
If I can be of any assistance to you, please contact me on 0415 509 275 or via email to email@example.com