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Terms and Conditions

TERMS & CONDITIONS OF SALES AND SERVICES

  All orders for the sale of goods and services from ECS are accepted according to the terms and conditions below. By ordering an item from ECS , you agree to these terms and conditions.


General

Property in goods supplied remains with ECS and title will not pass to the buyer until receipt of full payment. In the case of credit card payments, this occurs when funds are transferred to our account. 

In the event of default, ECS reserves the right to recover its property to the full extent permitted by law. 

Goods are supplied inclusive of GST. Overseas clients may claim exemption. In the case of goods supplied to clients not domiciled in Australia, any local taxes, duties or other liabilities are the purchaser's responsibility. 

All VISA, MasterCard and American Express payments are subject to a surcharge this is detailed on the invoice raised. We reserve the right to make changes to this surcharge or to extend the surcharge to other methods of payment. 

ECS may amend these terms and conditions at any time, and any such amendment will be effective immediately.


Goods charged to a Standards Subscriber Credit Account

All Standards Subscribers account payments to ECS are due on the basis of 14 days from the date of invoice. 

ECS reserves the right to charge interest on any outstanding amount at the rate of 1.5% per month. 

If payment is not made within 15 days of the due date, ECS may refuse to fulfil any further orders until outstanding payments have been made. 

We can only offer replacements for lost orders within 30 days of the invoice date. 

If you do not contact us within that 30 days, we will be unable to offer you a completion and monies paid for services to date will not be refunded. 

ABN: 93371951492


SUBSCRIPTIONS


TERMS & CONDITIONS OF SALE

(Current as at 8 September 2019)

This agreement made between Evolve Compliance Solutions (ECS) and the Customer in relation to the supply of Products and services comprises the terms and conditions set out:

(a) herein, including the annexures hereto (“Terms And Conditions Of Sale”);

(b) in a Proposal accepted by the Customer (in the event a Proposal has been issued to the Customer); and

(c) in an Invoice (if any)


(“Agreement”). 

The Customer agrees that terms and conditions set out in this Agreement prevail over any other terms that may be communicated by the Customer to ECS in writing or orally, whether in an order, letter, other document, in negotiations, subsequent to the making of this Agreement or otherwise (“Customer’s Terms”).  For the avoidance of doubt, the Customer’s Terms do not apply to the Products offered by ECS to the Customer pursuant to this Agreement.  The Customer further agrees that any subsequent document that purports to incorporate Customer’s Terms so issued by the Customer to ECS , including but not limited to a purchase order, shall be taken as the Customer’s internal administrative document only and any terms therein shall not be binding on ECS .


1. DEFINITIONS

In this Agreement, the following words and phrases with their first letter(s) capitalised shall have the meaning ascribed to them as set out below:


“Charges” means the amount payable by the Customer for a Product as set out in an Invoice;


“Customer” means the purchaser of the Product or the party who has accepted the Proposal and to whom the Invoice is issued;


“Goods” means any publication selected by the Customer specified in an Invoice being:

(a) in paper format;

(b) in paper format as part of a subscription service; or

(c) in PDF format, which is not provided as part of a Service.


“Intellectual Property” means all current and future registered and unregistered rights, including copyright and trademarks, in respect of the Web Portals, the Service and/or the Publications;


“Minimum System Requirements” means current and previous major releases of Internet Explorer, Firefox and/or Safari browsers and/or the current version of Chrome browser, as updated by the relevant provider from time to time.  Any browser that is no longer supported by the provider shall be deemed not to meet the Minimum System Requirements;


“Invoice” means the online or paper form which may include the following information:

(a) the Customer’s Details;

(b) the Product(s) selected by the Customer, including any specific or optional features selected by the Customer;

(c) where the Product is a Service, the number of licences or users of the Service; 

(d) the Charges for the Product(s) selected by the Customer, inclusive of any GST, delivery charges and insurance (If applicable); 

(e) the Subscription Date; and

(f) where the Product is Goods, a delivery address.


“Product” means a Service or Goods;


“Product Description” means the description of each Product as set out in a Proposal or otherwise provided by ECS or available on the relevant ECS website, from time to time; 


“Proposal” means a proposal delivered by ECS to a potential Customer who is seeking to purchase a Product;


“Publication” means standards and other publications and related material and content for which ECS is an authorised distributor for and as specified in the Proposal; 


“Publication Connection” means the links and other cross referencing functionality created by the User in respect of the documents and/or Publications;


“ECS ” means the relevant Product supplier being either ECS Pty Ltd ACN 606 895 249 whose registered address is Southport Central Tower 1, level 5, 1505/56 Scarborough Street, Southport QLD 4215

Australia corporate of and nominated by ECS Pty Ltd and whose identity is confirmed on the Invoice or Proposal;


“Service” means any service using ECS ’s Consulting, On-Line Platform web portals to access the Publications as selected by the Customer and as specified in an Invoice or as accepted by the Customer pursuant to a Proposal and as described in the Product Description;


“Subscription Period” means: (i) the term outlined and accepted by the Customer pursuant to the Proposal and/or as described in the Product Description; or (ii) where no such term is specified, the twelve (12) month period beginning on a Subscription Date; 


“Third Party Document” means a document (other than a Publication) uploaded onto the web portal / Platform by the User; 


“User” means each user of the Web Portals and or each user who accesses of any Publication who has been so authorised by ECS or by the Customer or any associate of the Customer as set out in the Proposal; and 


“Web Portals” means Standards On-Line Platform web portals.


2. SERVICES


2.1 In consideration of payment of the Charges in full, ECS hereby grants to the Customer the non-exclusive, non-transferrable right for the duration of the then current Subscription Period to:

(a) use and access the Service listed in an Invoice or a Proposal that has been accepted by the Customer; 

(b) access the Publication via the Service; and

(c) use the Publication obtained via the Service in accordance with the Product Description, on the applicable terms and conditions set out in this Agreement. 

2.4 Subject to any variation as set out in a Proposal, the rights granted under clause 2.1 are for the Customer’s internal business purposes only, and shall not extend to:

(a) any related body corporate or affiliate of the Customer; 

(b) any shareholder of the Customer; 

(c) any business unit or division located outside the country where the Customer primarily operates; 

(d) any member and/or subscriber of the Customer, where the Customer is a membership or subscription organisation; or 

(e) any incorporated or unincorporated joint venture entity of which the Customer is a participant.

For the avoidance of doubt, this means that each party that has its own Australian Business Number and/or operates in a jurisdiction different to that of the Customer or who is not an employee of the Customer needs to be separately licenced to use the rights granted under clause 2.1. 

2.5 The Customer shall keep any usernames and passwords confidential and will not disclose them to any persons that are not current employees and/or officers of the Customer and shall use all reasonable efforts to prevent any unauthorised access to the Service(s) and/or use of the Publication and, in the event of such unauthorised access, shall immediately notify ECS .

2.6 Except as permitted under this Agreement, the Customer shall not:

(a) attempt to copy, modify, duplicate, create a derivative work from, republish, adapt all or any part of the Products and/or the Publication;

(b) reverse engineer, reverse compile or disassemble any or part of the Service(s);

(c) access all or part of the Service(s) in any way in order to build a product or service which competes with the Service(s);

(d) licence, sell, rent, lease, transfer, assign, distribute, display, disclose or otherwise commercially exploit or make the Service(s) and/or Publication available to any third parties;

(e) attempt to obtain, or assist a third party to obtain access to the Service and/or Publication other than as expressly provided in this clause 2; 

(f) distribute or share copies of the Goods, Products and/or the Publication with any third party or embed or copy any part of the Goods, Products and/or the Publication into any document that may be accessed by or distributed to any third party; and

(g) assemble a reference collection of the Goods, Products and/or the Publication by accumulating or compiling more than 10% of publications that may be derived from Goods, Products and/or the Publication in hard copy or other electronic format.

2.7 ECS may suspend access to a Service to fix any faults, defects or other irregularities in the Service and shall, if practicable use its reasonable efforts to give the Customer at least 2 hours’ notice in advance of such suspension. 

2.8 ECS shall have no liability for the Customer’s inability to use and access any Services or download any PDFs caused by the failure of the Customer’s computer and telecommunications (including its Internet service and browser) systems to meet the Minimum System Requirements. 


3. GOODS / SERVICES


3.1 In consideration of payment of the Charges in full, ECS will supply and deliver the Goods & Services listed in an Invoice or a Proposal that has been accepted by the Customer on the applicable terms and conditions of this Agreement.

3.2 ECS will provide the Customer with an estimated date of delivery, which is its best estimate, but may be subject to change without notice.

3.3 ECS will deliver the Goods to the delivery address provided by the Customer in the Invoice or, if ECS otherwise agrees to any other Australian address notified to ECS in writing.

3.4 ECS shall deliver the Goods via a reputable third party courier service or via the postal service and therefore accepts no responsibility or liability for any loss or damage to the Goods once provided to the courier or postal service.

3.5 ECS shall retain ownership of the Goods and the Customer shall be responsible for maintaining the Goods in a fit, re-saleable and merchantable condition until such time as ECS receives full payment of the Charges in cleared funds.

3.6 The supply of Goods by ECS under this Agreement, including where delivered on-line as a PDF download, does not confer on the Customer any rights whatsoever in the intellectual property rights contained in those Goods, and sub-clauses 2.4(a) and (d) shall apply. 

3.7 In relation to Goods that are not provided for a Subscription Period, the Customer may cancel an order within 30 days of the date of the Invoice, provided that, the Goods are returned to ECS at the Customer’s cost in a fit, re-saleable and merchantable condition. ECS will inspect the condition of any such returned goods and provide a refund, provided that, the terms and conditions of this clause 3.7 have been strictly complied with. 


4. PROPRIETARY RIGHTS 


4.1 The Customer acknowledges that this Agreement grants no rights, title or interest in any such intellectual property rights to the Customer in the Publication of any of the Products, other than as expressly set out in this Agreement.

4.2 The Customer hereby agrees to comply with any copyright notices related to the Products received and shall not remove any copyright notices or other intellectual property rights notices.

4.3 The Customer acknowledges that certain Customer information may be incorporated into documents, reports and/or other intellectual property material generated or developed by ECS (“Data”) in a non-identifiable manner in the course of providing or arising from the provision of the Services.  To the extent that there is Data and that Data is owned by the Customer, the Customer grants to ECS a perpetual, non-exclusive, royalty-free licence to use the Data as part of its business processes provided that ECS does not identify the Customer nor breach any applicable privacy obligations nor compromise, prejudice or otherwise damage the Customer’s business and/or intellectual property rights from a commercial or financial perspective.

4.4 The Customer acknowledges that the information and other commercial terms (“Confidential Information”) set out in the Proposal are proprietary to ECS and have been provided to the Customer on a commercial-in-confidence basis. The Customer further acknowledges that the Confidential Information is valuable to ECS and the disclosure thereof may cause damage to ECS .  Accordingly, the Customer warrants it will keep confidential and not disclose the Confidential Information to any other party.  The Customer agrees that, in the event it breaches this non-disclosure obligation, ECS may, at its sole discretion, immediately suspend and/or terminate this Agreement and the Customer shall not be entitled to any refund of Charges related to the unexpired portion of the Subscription Period nor claim against ECS for any loss it suffers as a result of it not being able to use the Service.   

 

5. LIABILITY


5.1 Unless otherwise indicated, this clause 5 sets out the entirety of ECS ’s liability to the Customer and in relation to the Customer’s use or inability to use the Products provided under this Agreement. 

5.2 The Customer shall immediately inform ECS if it becomes aware of any unauthorised use of any of the intellectual property rights in any Products or Publication received by the Customer under this Agreement, and shall provide ECS with any reasonable assistance in relation to taking action against any such unauthorised use, provided that, ECS shall reimburse the Customer for its reasonable costs and expenses incurred in providing such assistance. 

5.3 To the fullest extent possible by law, and except where expressly indicated in this Agreement, ECS expressly and impliedly excludes any and all liability under this Agreement and makes no warranties, guarantees, representations or indemnities in relation to the Products and/or the Publication provided under this Agreement. 

5.4 ECS expressly and impliedly excludes any: indirect loss; consequential loss; loss of goodwill; loss of opportunity; loss of business; or loss of profit, whether arising in contract, tort (including negligence, misrepresentation or breach of statutory duty), as a result of:

(a) breach of this Agreement by ECS or arising as a result of the information contained in a Product; or 

(b) arising as a result of the suspension or termination of any of the Products, whether or not arising from ECS ’s exercise of its rights and obligations under this Agreement, including, to conduct maintenance, in accordance with this Agreement.

5.5 ECS ’s total aggregate liability to the Customer under this Agreement shall not exceed an amount that is equal to the Charges in relation to the Product(s) to which the liability relates.


6. PAYMENT, TERMINATION AND RENEWAL


6.1 Unless paid in full in cleared funds prior to delivery or prior to the Subscription Date, the Customer will pay any Invoices in full within 30 days from the date of that Invoice. All Charges are subject to GST at the then prevailing rate for Products purchased. 

6.2 ECS may, without cause, terminate this Agreement by giving the Customer 30 days’ notice, provided that it refunds the Customer on a pro-rata basis any Charges for any remaining unused Subscription Period at the end of the 30 day notice period. 

6.3 The Customer may not terminate this Agreement. 

6.4 All Products provided for a Subscription Period will continue to be provided for a subsequent Subscription Period unless cancelled by one Party giving the other Party notice in writing not less than 60 days before the end of the then current Subscription Period. 

6.5 This Agreement terminates at the conclusion of the current Subscription Period if the Subscription Period is cancelled pursuant to clause 6.4.

6.6 ECS may terminate this Agreement:

(a) immediately upon a material breach by the Customer of this Agreement; 

(b) failure of the Customer to pay any Invoices within 30 days of the date of the Invoice. 

6.7 Upon termination or expiration of this Agreement, the Customer shall:

(a) immediately cease any and all use of the Service(s) and/or Publication subject to any usage rights under the Product Description and shall cease to receive any Goods provided for a Subscription Period; and

(b) remove, destroy or delete all printed or downloaded electronic copies of any Publication held by the Customer. 

6.8 To ensure compliance with clause 6.7, ECS may: 

(a) require the Customer, at its own cost, to provide a certificate that removal or destruction has occurred; or

(b) appoint an auditor to verify the removal, destruction or deletion of the printed or downloaded electronic copies of any Publication.  The Customer agrees that the auditor shall be entitled, at all reasonable times during normal business hours of the Customer and upon reasonable notice, to audit the Customer’s internal processes and inspect and take copies any records and documents of the Customer, its agents or subcontractors relating to the performance of its obligations under this Agreement. 


7. PRIORITY


7.1 If there is inconsistency between any provisions set out the documents forming part of this Agreement, the provisions in those documents will be interpreted in the following order of priority to the extent of any inconsistency:

(a) Proposal;

(b) Invoice; and 

(c) Terms And Conditions Of Sale

and for the avoidance of doubt, if there is inconsistency between terms relating to a Product set out in a Proposal and in a Product Description out elsewhere (for example on ECS ’s website), the terms relating to a Product set out in a Proposal prevail to the extent of the inconsistency. 


8. PERSONAL INFORMATION AND PRIVACY POLICY

8.1 The Customer acknowledges that:

(a) ECS may collect personal information (as defined in the Privacy Act 1988 (Cth) and similar legislation of the Commonwealth and the States and Territories of the Commonwealth); 

(b) if ECS does collect personal information, the collection of such information shall be in accordance with its Privacy Policy (as set out on its website at Privacy Policy); and

(c) it has read and agrees to the terms of ECS 's Privacy Policy.


9. ANTI-BRIBERY

9.1 The Customer agrees that:

(a) it shall not commit, authorise or permit any action which would cause ECS and/or ECS ’s affiliates to be in violation of any applicable anti-bribery laws or regulations;

(b) this obligation applies in particular to illegal payments to government officials, representatives of public authorities or their associates, families or close friends; and

(c) it will never offer or give, or agree to give, to any employee, representative or third party acting on ECS ’s behalf nor accept, or agree to accept from any employee, representative or third party acting on ECS ’s behalf, any gift or benefit, be it monetary or otherwise, that could breach any law or policy applicable to ECS .

9.2 The Customer will notify ECS immediately if it:

(a) becomes aware;

(b) has reason to believe; or

(c) has any specific suspicion that there has been or will be a breach of clause 9.1 or there was corruption involved with regard to the negotiation, conclusion or performance of this Agreement `

9.3 Any breach of clause 9.1 by the Customer, its employees, agents or sub-contractors (whether with or without the knowledge of the Customer) will be deemed a material breach of this Agreement, and will entitle ECS to recover from the Customer the amount of any loss resulting from such material breach and to recover from the Customer the amount or value of any such gift, consideration or commission.    

9.4 The Customer acknowledges that it has read a copy of ECS ’s Whistleblowing Policy (as set out on its website evolvecompliancesolutions.com) including reporting hotline procedures and communicated the same to its relevant employees, agents and contractors.


10. MISCELLANEOUS

10.1 The Customer may not assign, transfer, pledge or otherwise encumber this Agreement and any such attempt by the Customer to assign this Agreement shall be null and void and confer on the assignee no rights to use the Service(s) and/or Publication. 

10.2 ECS may, in its absolute discretion, assign this Agreement to any party without notice.

10.3 A party’s failure to insist upon strict performance of any of the provisions of this Agreement shall not be construed as a waiver or relinquishment of that right or of that party’s right to assert or rely upon the provisions of this Agreement. Any waiver of a provision of this Agreement shall not be effective unless made in writing and properly executed by the waiving party.

10.4 Unless specifically provided otherwise, rights arising under this Agreement do not preclude rights at general law. 

10.5 This Agreement and any documents expressly incorporated by reference into this Agreement as part of this Agreement, represent the entire agreement between the parties in relation to the Products and/or the provision of the Publication by ECS .

10.6 If any provision of this Agreement is found to be fully or partially invalid or unenforceable it shall be deemed to be deleted from this Agreement, and the remainder of this Agreement, to the extent permissible shall be valid and binding as if such provisions were not previously included in this Agreement.

10.7 ECS shall have no liability to the Customer under this Agreement if it is prevented from or delayed in performing its obligations under this Agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of ECS or any other party), failure of a utility service including transport or telecommunications services, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors. ECS shall use its reasonable efforts to notify the Customer of such an event and its expected duration. 

10.8 Any notice required to be given under this Agreement to ECS shall be in writing and shall be delivered by email, hand or sent by pre-paid first-class post or recorded delivery post to the other party at its address set out in this Agreement, or such other address, including email address, as may have been notified by that party for such purposes, or sent by fax to the other party's fax number as set out in the Invoice. 

10.9 The Customer acknowledges and agrees that the Charges and other pricing information pertaining to the Services (Pricing Data) are commercial-in-confidence and remain the property of ECS .  The Customer warrants it will not disclose Pricing Data to any third party without the prior written permission of ECS .

10.10 Notwithstanding termination of this Agreement, the following clauses shall survive termination of this Agreement: clauses 1 (to the extent necessary to interpret any of the following clauses), 2.4, 4, 5, 6.6, 6.7, 7 and 10.9 (inclusive). 

10.11 This Agreement shall be governed by and construed under the laws and regulations of QUEENSLAND and the exclusive jurisdiction of the courts of Queensland.


ANNEXURE A 

The Customer and/or User acknowledges that:

(a) it does not own the electronic downloaded files, printed files, any disks, documentation or manuals on which the Service or Intellectual Property is originally or subsequently recorded or fixed;

(b) it may use the electronic or printed files to obtain information contained in them for its internal business purposes only (and in accordance with clause 2.2 of this document the Terms conditions of Sale);

(c) no promise, representation, warranty or undertaking (other than any contained in this Agreement) has been given by ECS or any person on its behalf in relation to the profitability of or any other consequences or benefits to be obtained from the use of the Service and the Customer relies wholly on its own skill and judgment in deciding to use the Service;

d) no warranty or representation is made by ECS or any party connected with this Service, express or implied, with regard to the quality, utility, completeness or accuracy of the Service;

e) the licence to use the Service terminates upon termination or expiry of this Agreement;

f) not to use the Service or Web Portals to combine with any other information with the object of offering it on line or in any manner to third parties;

(g) all rights, title and interest (including the intellectual property rights) in the Web Portals as well as the 3rd party Platforms shall at all times be and remain the property of ECS and/or its related bodies corporate and the Customer shall not acquire any right, title or interest in the same;

(h) ECS reserves the right at any time to make changes to either of the Web Portals without notice to the Customer;

(i) ECS does not warrant that

   (i) access to either of the Web Portals will be uninterrupted or error free; and

   (ii) functionalities of the Web Portals meet the Customer’s requirements;

and

(j) except for liability that by law (including without limitation by the Competition and Consumer Act 2010) cannot be limited, ECS liability to the Customer for any reason, including breach of this Agreement, however arising (including for negligence) is limited, at the option of ECS , to either resupplying the Product or the payment of the cost of having the Product supplied again. 

The Customer or User may download and store electronic copies for temporary off-line uses. 

In event that you are accessing the Product through ECS ’s Standards On-Line, the User acknowledges that downloaded copies of Standards are encoded with a predetermined expiry date, after which they cease to be accessible.

In addition to the prohibitions set out in clause 2.2 in the main body of this Terms and Conditions of Sale, the Customer or User agrees that:

(a) it will not challenge or call into question ECS ’s rights to and/or ownership of Intellectual Property rights; 

(b) must not reproduce documents or portions of documents provided by this Service other than in accordance with the terms of this Agreement.  Written consent must be obtained from The Copyright Officer, Information Services, info@evolvecompliancesolutions.comprior to reproducing documents or portions of documents; and

(c) it must not use the functionalities of the Web Portals and/or the Service in a manner or associated with material that would damage the reputation or goodwill of ECS or the respective owners of the Intellectual Property.


Company Policies

Please contact us for a copy of our Company Policies as required.