1.          Definitions and Interpretation

      1.1       Definitions

In this Agreement, the following words and phrases have the following meanings unless the context requires otherwise:

“Australian Consumer Law” means Schedule 2 of the Competition and Consumer Act 2010 (Cth).

“Business Day” means a day that is not a Saturday, a Sunday, or a day that is wholly or partly a public holiday throughout the state of Victoria.

“Confidential Information” means the terms of this Agreement, information relating to the Client’s business that is not available to the public at the date of this Agreement and all information (regardless of its form) disclosed to a party under or in connection with this Agreement. The term does not include information that:

is in the public domain other than through a breach of this Agreement or an obligation of confidence owed to the discloser.

was already known to the receiver at the time of that disclosure (unless that knowledge arose from a breach of an obligation of confidentiality); or

the receiver lawfully and properly acquires from a source other than the discloser or any Representative of that discloser, where that source is entitled to disclose it.

“Conditions” means these Conditions as set out in the section of this document.

titled “Contract.”

“Consequential Loss” means loss of expected savings, loss of use, loss of opportunity, loss of profit, loss of revenue, increased financing costs, loss arising from delay, or any consequential, special, or indirect loss or damage, whether or not the possibility or potential extent of the loss or damage was known or foreseeable, and whether arising from a claim under indemnity, contract, tort (including negligence), statute or otherwise.

“Client” means the party engaging ROIC Business Group to provide the Services.

“Default Rate” means the rate per annum which is two per cent (2%) higher than the rate set from time to time under section 2(1) of the Penalty Interest Rates Act 1983 (Vic).

“Deliverables” means the Works to be delivered to the Client in the form and media specified in the Project Summary.

“Engagement Agreement” means the agreement for the supply of the Services by ROIC Business Group as constituted by the Conditions, the Project Summary and any attachments or schedules to this document intended to form part of the contract for the provision of the Services between ROIC Business Group and the Client.

“Fees” mean the fees charged by RBG to the Client for the provision of Services as stated in the Project Summary; (k) “Insolvency Event” means:

in relation to a body corporate, a liquidation or winding up, the appointment of a controller, administrator, receiver, manager or similar insolvency administrator to a party or any substantial part of its assets or the entering into a scheme or arrangement with creditors or the occurrence of any event that has a substantially similar effect to any of these events.

in relation to an individual, becoming bankrupt or entering a scheme or arrangement with creditors or the occurrence of any event that has a similar effect to any of these events; or

In relation to a trust, the making of an application or order in any court for accounts to be taken in respect of the trust or for any property of the trust to be brought into court or administered by the court under its control or the occurrence of any event that has a substantially similar effect to any of these events.

“Intellectual Property Rights” means all present and future rights conferred by statute, common law, or equity in or in relation to any copyright, trademarks, designs, patents, circuit layouts, business and domain names, inventions, and other results of intellectual activity in the industrial, commercial, scientific, literary, or artistic fields.

“Non-Excludable Obligation” means any implied condition or warranty, provision, the exercise of any right or remedy, or the imposition of any liability under the Australian Consumer Law or any other statute where its exclusion from any agreement would contravene that statute or cause any term of an agreement to be void.

“Project Summary” means the Services to be performed by ROIC Business Group as set out in the section of this document titled “Your Investment” and/or any other agreement in writing entered into between ROIC Business Group and Client setting out the services to be performed by ROIC Business Group under the Engagement Agreement and includes any subsequent project summary (or similar) agreed in writing between the parties after the initial Project Summary is agreed.

“Payment Milestone” means any date specified in the Project Summary by which the Client must make payment of a Fee to ROIC Business Group

“Services” means all services and Work products to be provided to the Client by the Supplier as specified in the Project Summary.

“ROIC Business Group” means ROIC Business Group Pty Ltd (ACN: 661 241 318) trading as ROIC Business Group making the supply of Services to Clients.

“Upfront Fee” means any Fee which is stated to be payable under the

Engagement Agreement at the date the Client enters it.

“Variation” means any written agreement on a variation, amendment, or addition to the Engagement Agreement, entered by ROIC Business Group and Client following their entry into the Engagement Agreement; and 

“Works” means all creative content developed by ROIC Business Group, or commissioned by ROIC Business Group, for the Engagement Agreement and incorporated in the Deliverables, including, but not limited to, the computer application/s and programs developed pursuant to the Engagement Agreement; it includes any supporting documentation and manuals, visual elements, graphic design, illustration, photography, animation, motion design, audio-visual works, sounds, typographic treatments and text, and ROIC Business Group’s selection, arrangement and coordination of such elements, and excludes the Preliminary Works.

      1.2       Interpretation

In this Agreement, unless the context otherwise requires:

a reference to any legislation or legislative provision includes any statutory modification or re-enactment of, or legislative provision substituted for, and any subordinate legislation issued under, that legislation or legislative provision.

The singular includes the plural and vice versa.

a reference to an individual or person includes a corporation, partnership, joint venture, association, authority, trust, state, or government and vice versa.

A reference to a group of persons is a reference to any two (2) or more of them jointly and to each of them separately.

A promise on the part of a group of persons binds any two (2) or more of them jointly and to each of them separately.

a reference to any party to this Agreement, or any other document or arrangement, includes that party’s executors, administrators, substitutes, successors and permitted assigns; and

where an expression is defined, another part of speech or grammatical form of that expression has a corresponding meaning.

      1.3      Structure

The Conditions are intended to regulate key terms in respect of the supply of Services by ROIC Business Group to the Client.

The Conditions and Project Summary are incorporated by reference as forming part of the Engagement Agreement. The Conditions are legally binding between ROIC Business Group and the Client and are read together with the Project Summary. To the extent of any inconsistency, the Project Summary prevails over the Conditions.

      1.4       Severability

Part or all any provision of this Agreement that is illegal or unenforceable will be severed from this Agreement and will not affect the continued operation of the remaining provisions of this Agreement.

      1.5       Governing Law and Jurisdiction

This Agreement will be governed by and construed in accordance with the laws in force in the State of Victoria and each party submits to the exclusive jurisdiction of the courts of that State.

      2.            Entry into, term and variation of Engagement Agreement

The terms of the Engagement Agreement are effective for 10 Business Days after ROIC Business Group's presentation of the Engagement Agreement to the Client. In the event the Client does not enter into the Engagement Agreement within this timeframe, the Engagement Agreement may be subject to amendment, change or substitution by ROIC Business Group.

The term of the Engagement Agreement commences on the date the Client validly enters it and pays the Upfront Fee and continues until completion of the Services as specified under the Project Summary unless lawfully terminated earlier.

A Variation may only vary the Engagement Agreement.

      3.         Relationship of the parties

ROIC Business Group is an independent contractor, not an employee of the Client or any company affiliated with the Client. ROIC Business Group shall provide the Services under the general direction of Client, but ROIC Business Group shall determine, in ROIC Business Group’s sole discretion, the manner and means by which the Services are performed. This Agreement does not create a partnership or joint venture and neither party is authorized to function as agent or bind the other party except as expressly stated in the Engagement Agreement. All rights, if any, granted to Client are contractual in nature and are defined in the Engagement Agreement.

ROIC Business Group shall be permitted to engage and/or use third-party designers or other service providers as independent contractors in connection with the Services.

The Engagement Agreement does not create an exclusive relationship between the parties.

      4.         Fees and payment terms

In consideration of the Services to be performed by ROIC Business Group pursuant to the Project Summary, the Client must pay to ROIC Business Group the Fees when due in line with the Payment Milestones specified in the Project Summary. Fees are invoiced in advance.

ROIC Business Group may invoice the Client for Fees due at each Payment Milestone.

Any Upfront Fee must be paid by the Client to ROIC Business Group at the date the Client enters into the Engagement Agreement.

The Client must pay all invoices, which do not relate to the Upfront Fee, within 14 days of the invoice date without deduction or set-off.

If the Client does not provide ROIC Business Group with remittance advice at the time of payment towards its account or, alternatively, supplies ROIC Business Group with inaccurate remittance advice, ROIC Business Group may apply such payment (or a portion of a payment) against the earliest of the Client’s outstanding invoices or portion thereof.

ROIC Business Group may require that the Fees be paid via direct debit. Payments made via credit card will attract a surcharge of 1.00%.

      5.         Overdue payments

If the Client fails to pay an amount due under the Engagement Agreement, interest will accrue on that amount at the Default Rate. Such interest accrues daily from the due date until the actual date of payment is payable on demand and is calculated based on a year of 365 days and on the basis that interest is compounded at the end of each month.

The Client must pay all costs and expenses (including legal costs, commissions paid by ROIC Business Group to any commercial or mercantile agent and dishonour fees) incurred by ROIC Business Group in connection with the recovery of overdue amounts.

ROIC Business Group may recover the Fees due under the Engagement Agreement together with all interest forthwith from the Client as a liquidated debt in a court of the tribunal of competent jurisdiction irrespective of any claim that the Client may have against ROIC Business Group for anything or matter related to the Services provided under ROIC Business Group Agreement.

A statement in writing signed by an authorised officer of ROIC Business Group setting out the amount due or owing to ROIC Business Group at the date of the statement shall be sufficient evidence of the amount so due or owing until the contrary is proven.

ROIC Business Group may in its discretion grant an extension for payment, however, any indulgence shall not be construed as waiving ROIC Business Group rights under these Conditions or at law.

If any payments due under the Engagement Agreement are overdue then, without prejudice to any other rights under these Conditions or at law, ROIC Business Group may:

(i)     suspend the provision of the Services, and (ii)     withhold delivery of Deliverables.

      6.         Timing and communication

ROIC Business Group will use reasonable endeavours to perform the Services within the timeframes specified in the Project Summary.

The Client acknowledges and agrees that ROIC Business Group’s ability to meet any and all timeframes specified in the Project Summary is dependent upon the Client’s prompt performance of its obligation to provide materials, approvals, and instructions in a timely manner to ROIC Business Group and any delays in Client’s performance of such actions and/or Variations may delay delivery of the Preliminary and Final Deliverables.

The Client must review the Deliverables within 10 Business Days of their delivery and must promptly:

approve them in writing.

Provide written comments and/or corrections sufficient to identify the Client’s concerns, objections and/or corrections to ROIC Business Group.

ROIC Business Group shall be entitled to request written clarification from the Client in relation to any concern, objection, or correction of the Client.

ROIC Business Group is not liable for any delay or failure to supply the Deliverables for any reason where such delay is due to strike, lockout, riot, industrial action, fire, storm, tempest, the act of God, material shortage, government law or regulation or requirement or any other cause beyond the control of ROIC Business Group.

      7.         Limitation of liability

Nothing in this clause eight operates to exclude, restrict, or modify the application of any Non-Excludable Obligation that may be applicable to the Engagement Agreement.

To the extent that the Client acquires goods or services from ROIC Business Group as a consumer within the meaning of the Australian Consumer Law, the Client may have certain rights and remedies (including, without limitation, consumer guarantee rights) that cannot be excluded, restricted, or modified by agreement.

Except in relation to Non-Excludable Obligations, ROIC Business Group expressly excludes all conditions, warranties, guarantees, rights, remedies, liabilities, or other terms that may arise or be implied by custom, under the general law or by statute.

Except in relation to Non-Excludable Obligations, ROIC Business Group’s liability to the Client arising directly or indirectly under or in connection with the Engagement Agreement or the performance or non-performance of the Engagement Agreement and whether arising in contract, under any statute or on any other basis in law or equity is limited as follows:

ROIC Business Group will have no liability whatsoever to the Client for any Consequential Loss, and

The aggregate of ROIC Business Group’s liability to the Client is otherwise limited to an amount not exceeding consideration paid by the Client under the Engagement Agreement.

In relation to Non-Excludable Obligations in relation to services of a kind ordinarily acquired for personal, domestic, or household use or consumption (in respect of which ROIC Business Group’s liability is not limited under the Engagement Agreement), ROIC Business Group’s liability to the Client for failure to comply with any Non-Excludable Obligation is limited to the supply of the Services again or payment of the cost of having the Services supplied again.

      8.       GST

Unless otherwise stated the Fees do not include an amount of Goods and Services Tax (GST). In addition to the Fees and Expenses, the Client must pay to ROIC Business Group an amount equal to any GST the ROIC Business Group must pay for any supply by the ROIC Business Group under this or any other agreement for the sale of the Goods. The Client must pay GST, without deduction or set off any other amounts, at the same time and on the same basis as the Client pays the Fees and Expenses.

      9.         Intellectual Property

ROIC Business Group retains all Intellectual Property Rights in the Work. ROIC Business Group grants the Client a nonexclusive, non-transferable, royalty-free licence to use the Intellectual Property Rights in the Work strictly for the purpose of administering its business (providing its business does not compete with ROIC Business Group).

       10.      Confidentiality

The Client and ROIC Business Group must keep confidential all Confidential Information.

       11.     Privacy

ROIC Business Group complies with the privacy principles imposed by law in relation to the collection and disclosure of information regarding individuals. For further information on the way ROIC Business Group manages personal information, refer to www. ROIC Business Group.com.au/privacy.

The Client warrants and represents that on the date of the Engagement Agreement and throughout the duration the Services are provided under the Engagement Agreement, it is permitted to disclose to ROIC Business Group personal information relating to its customers for the purpose of ROIC Business Group provision of the Services.

       12.      Termination

A party (the Non-Defaulting Party) may terminate the Engagement Agreement by notice to the other party (the Defaulting Party) if:

the Defaulting Party breaches a term of this Agreement (and the breach is not remedied, or its effects overcome within 5 Business Days of the Non-Defaulting Party notifying the Defaulting Party of the breach).

a warranty provided by the Defaulting Party is or becomes untrue or incorrect (and the circumstances giving rise to it are not remedied or the

effects overcome within 5 Business Days of the Non-Defaulting Party notifying the Defaulting Party of the circumstances); or

An insolvency Event occurs in respect to the Defaulting Party.

If the Engagement Agreement is terminated under this clause fourteen then, in addition to any other rights, powers or remedies provided by law, each party retains the rights it has against the other party in connection with any breach or claim that has arisen before termination.

Upon termination, all Fees due to be paid by the Client pursuant to Payment Milestones that have passed become immediately due and payable and the Client must compensate ROIC Business Group for a prorated portion of the Fees due for Services performed by ROIC Business Group as at the date of termination.