LARKI Supplier Terms and Conditions

 

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. The
Data Supplier must not supply data similar to the Data to Customers directly, or
to any other person or entity who provides the same or similar services as LARKI
while the Data Supplier supplies Data to LARKI and for a period of two years (or
one year, or six months, if the longer period is not enforceable) following any
supply to LARKI. The Data Supplier is not permitted to contact the Customer
directly 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
Customer Price is received by LARKI from the Customer. Notwithstanding
anything in these Terms and for the avoidance of doubt, LARKI has no liability to
the Data Supplier to pay the Supplier Price until the relevant Customer has paid
LARKI for the Data supplied by that 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.