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1. Application
In transferring Data to LARKI, the Data Supplier agrees to be bound by these Terms. A Data Transfer Order will be deemed to have been accepted if a Data Supplier supplies LARKI with Data and does not notify LARKI of non-acceptance of the Data Transfer Order and these Terms within 3 Business Days of receipt of a Data Transfer Order. If these Terms are inconsistent with terms of supply or other communication provided by the Data Supplier, then to the extent permitted by law these Terms will prevail to the extent of the inconsistency.
2. Definitions
In this Contract: “Business Day” means a day that is not a Saturday, Sunday or public holiday in Victoria. “Confidential Information” means all information (whether oral, graphic, electronic, written or in any other form) relating to LARKI or its business and disclosed directly or indirectly to the Supplier or any of its representatives. “Contract” means, in order of priority, the Data Transfer Order, these Terms and any schedule and attachments to the Data Transfer Order. “Customer” means a LARKI customer. “Customer Price” means the price payable by a Customer to LARKI for a Neighbourhood Survey. “Data” means digital computer files provided to LARKI for use on LARKI’s website and/or for LARKI to on-sell to Customers on behalf of the Data Supplier. “Data Supplier” means a person who provides Data to LARKI. “Data Transfer Order” means any document issued by LARKI or a LARKI website form confirming the details of the Data supplied or to be supplied by the Data Supplier. “Defect” means any part or aspect of the Data that does not comply with the specifications in a Data Transfer Order or the warranties set out in clause 5, or which in LARKI’s view (acting reasonably) is otherwise inadequate or unsatisfactory (and Defective has a corresponding meaning). “Delivery Date” means the date for delivery of the Data as set out in a Data Transfer Order or otherwise notified by LARKI to the Data Supplier. “GST” means any tax including any additional tax imposed on the supply of or payment for goods or services which is imposed or assessed under the A New Tax System (Goods and Services Tax) Act 1999 and all related and auxiliary legislation. “Intellectual Property” means all intellectual property and proprietary rights (whether registered or unregistered) including confidential information (and the right to have it kept confidential), designs, drawings, digital models, digital files, software, products, processes, financial information, business names, trade or service marks, marketing information, logos, specifications, patterns, templates, artwork, blocks, plates, discoveries, inventions, ideas, concepts, know-how, patents, patent applications, trade secrets, copyright (including moral rights under Part IX of the Copyright Act) and trade secrets. “LARKI” means LARKI Pty Ltd, ABN 35615835660. “Margin” means the amount of the Customer Price which LARKI will be entitled to retain as set out in a Data Transfer Order or otherwise agreed between LARKI and the Data Supplier. “Neighbourhood Survey” means site specific land surveying, architectural, property or planning data provided by LARKI for use by the specific intended Customer. “Supplier Price” means the amount of money payable by LARKI to the Data Supplier for Data, being the Customer Price less the Margin and any other taxes and charges. “Terms” means these Terms and Conditions as amended by LARKI from time to time and available on the LARKI website at www.larki.info or www.larki.com.au.
3. Supply of Data
The Data Supplier must supply Data which meets the specifications set out in the Data Transfer Order, complies with land surveying, architecture and statutory planning requirements set by government and industry bodies and all relevant laws, regulations and standards, and is delivered with the due care, skill and diligence that would reasonably be expected of a prudent, expert and experienced service provider in the industries in which LARKI operates. If a LARKI Customer is not known to the Data Supplier prior to the Data Supplier supplying Data, then the Data Supplier must not supply data similar to the Data to this Customer directly, contact the Customer directly, and/or disintermediate LARKI, for a period of two years (or one year, or six months, if the longer period is not enforceable) following any supply of Data or introduction to the Customer by LARKI, without LARKI’s prior written approval.
4. Delivery
The Data Supplier must deliver the Data to LARKI, in the format reasonably required by LARKI on the Delivery Date and otherwise in accordance with any other reasonable instructions given by LARKI.
5. Warranties
The Data Supplier warrants that:
(a) The Data is reasonably fit for the purpose made known to the Data Supplier by LARKI, and will remain fit for that purpose.
(b) The Data does not infringe the rights of any other person, including any Intellectual Property rights.
(c) The Data:
(i) complies with the specifications given by LARKI in a Data Transfer Order;
(ii) will be free from Defects, provided in a timely manner and in accordance with the Delivery Date specified in the Data Transfer Order (with time being of the essence);
(iii) will be delivered in a proper and efficient manner and in good faith, with the due care, skill and diligence that would reasonably be expected of a prudent, expert and experienced service provider in the industry in which LARKI operates, and in accordance with all relevant laws, regulations and standards, and reasonable directions given by LARKI.
(d) The Data Supplier holds relevant licenses to supply the Data and professional indemnity insurance to cover any claim arising out intended use of the Data.
6. Defects
6.1 If, following receipt of the Data from the Data Supplier, LARKI is of the view (acting reasonably) that the Data is Defective, the Data Supplier must (at LARKI’s option):
(a) re-supply the Data (with Defects rectified) at the Data Supplier’s cost;
(b) allow LARKI to obtain the Data from a third party supplier at the cost of the Data Supplier; or
(c) provide a full refund to LARKI of the Supplier Price paid by LARKI to the Data Supplier for the Data.
6.2 All costs, expenses and liabilities (including legal costs on a full indemnity basis) and damage arising directly or indirectly from the supply of Defective Data (including any costs LARKI incurs by making good any Defect or seeking alternative supply) shall be a debt due and owing by the Data Supplier to LARKI and may be deducted from any moneys payable or that become payable by LARKI to the Data Supplier.
7. Invoicing, Price and Payment
7.1 LARKI may issue tax invoices in the form of recipient created tax invoices (RCTIs) in respect of supplies made by the Data Supplier to LARKI. If LARKI does so, the Data Supplier will not invoice LARKI for the Data supplied and LARKI may issue an adjustment note in relation to GST adjustment events, where appropriate. The Data Supplier warrants that it is registered for GST.
7.2 LARKI must pay the total Supplier Price to the Data Supplier, subject to any adjustments, in accordance with these Terms and Data Transfer Order. Payment terms are 30 calendar days from the end of the month during which the tax invoice is received from the Data Supplier.
8. GST
Where the supply of Data is subject to GST, and LARKI does not issue an RCTI, the Data Supplier must provide an invoice that enables LARKI to claim tax credits in respect of the supply. Any GST set out on a Data Transfer Order is an estimate only, and the Data Supplier must ensure each invoice specifies the correct amount of GST and must notify LARKI promptly of any errors or omissions.
9. ABN
Unless the Data Supplier quotes its Australian Business Number (ABN) on an invoice or otherwise provides to LARKI its ABN or a written statement in a form approved by the Australian Taxation Office as to the reason for not quoting an ABN, LARKI will withhold an amount of tax (currently 49%) from any payments made to the Data Supplier under the Contract.
10. Intellectual Property and Confidential Data
10.1 LARKI may provide to the Data Supplier access to LARKI’s Intellectual Property and Confidential Information for the purpose of the Data Supplier fulfilling its obligations under a Data Transfer Order and these Terms (Purpose). All such Intellectual Property and Confidential Information that LARKI provides to the Data Supplier is confidential. The Data Supplier must maintain the confidentiality of LARKI’s Intellectual Property and Confidential Information and must only use it for the Purpose or to the extent otherwise authorised by LARKI in writing.
10.2 The Intellectual Property and Confidential Information provided remains the property of LARKI. LARKI makes no representations or warranties in relation to its Intellectual Property or Confidential Data.
10.3 The Data Supplier grants to LARKI a worldwide, royalty-free perpetual licence (including the right to sub-license to Customers) to use the Data.
11. Indemnity
The Data Supplier must indemnify, and agrees to keep indemnified LARKI against all losses and damages (including consequential loss and legal costs on a full indemnity basis) that LARKI may suffer, including as a result of any claim, proceeding or investigation by any third party that is made or commenced against LARKI (including a claim relating to infringement of Intellectual Property rights), as a direct or indirect result of a breach of this Contract or otherwise arising from the provision of Data by the Data Supplier.
12. Cancellation and amendment
12.1 LARKI may cancel or amend a Data Transfer Order:
(a) at any time by giving 5 Business Days written notice; or
(b) immediately at any time by giving written notice to the Data Supplier if anything happens that in LARKI’s reasonable opinion indicates that there is a significant risk that the Data Supplier is or will become unable to pay debts as they fall due, or if the Data Supplier fails to remedy a breach of a Data Transfer Order or these Terms for at least 3 Business Days after receiving a written notice from LARKI specifying the breach and requiring it to be remedied. 12.2 If LARKI cancels a Data Transfer Order, the Data Supplier will not be entitled to, and must not submit a claim for, loss of profit or consequential costs or loss. LARKI will pay to the Data Supplier any amount of the Supplier Price outstanding for Data already supplied and paid for by the Customer, within 45 Business Days of cancellation by LARKI (other than where LARKI cancels under clause 12.1(b) above, in which case LARKI is not obliged to make any payments to the Data Supplier on or after cancellation). Cancellation or termination of this Contract for any reason does not affect any rights LARKI may have in relation to anything done or not done by the Data Supplier.
13. General
(a) Any waiver by LARKI of any of these Terms must be in writing signed by LARKI and will be effective only to the extent specifically set out in the waiver.
(b) The Data Supplier must not assign any rights under this Contract without the prior written consent of LARKI. A change in control of the Data Supplier constitutes an assignment for the purposes of these Terms.
(c) Time is of the essence in relation to all the Data Supplier’s obligations under this Contract.
(d) If any provision or part of a provision of these Terms is found to be unenforceable, it is to be severed from these Terms and will not affect the operation or enforceability of the remaining provisions.
(e) This document is governed by the law of Victoria, Australia, and the parties submit to the nonexclusive jurisdiction of the courts of that state.
(f) These Terms may be varied at any time by LARKI with written notice to the Data Supplier.
(g) The Contract is the complete contract between LARKI and the Data Supplier in relation to the supply of Data. No confirmation, delivery document, invoice or other document will vary the Contract.
