BACKGROUND:
The Client requires the Services to be provided by Ludora and Ludora agrees to provide the Services.
This agreement sets out the terms and conditions on which the Services will be provided.
1. Term
1.1 Commencement
(a)This agreement commences on the Commencement Date and continues until terminated earlier in accordance with clause 11.
(b)Where a SOW specifies an alternative Commencement Date for the provision of the Services specified in that SOW, then the Commencement Date specified in the SOW will apply.
2. Services and Deliverables
2.1 SOW
Subject to clause2.2(c) and 2.3, the parties will enter into a SOW for each Service and Deliverable. The terms and conditions of this agreement will apply to each SOW once the SOW is signed by the parties.
2.2 Scope and Deliverables
(a)Ludora will provide the Services and the Deliverables in accordance with the relevant Quote, SOW and this agreement.
(b)Except where a Quote or SOW states otherwise, the terms of a Quote or SOW will prevail over the terms of this agreement to the extent of any inconsistency.
(c)In the event that Ludora provides Services and/or Deliverables prior to the parties entering into a SOW, the terms of this agreement will apply to the provision of those Services and/or Deliverables.
2.3 AI Audit and Consulting Services
(a)If Ludora is required to deliver to the Client:
(i)an AI Audit; or
(ii)other consulting Services
(whether prior to the parties entering into a SOW or as a Deliverable), or it is not practical for the parties to enter into a SOW for whatever reason, the AI Audit and such consulting Services will be provided and invoiced as agreed between the parties in writing.
(b)For the avoidance of doubt:
(i)the parties are not required to enter into a SOW for an AI Audit or other consulting Services;
(ii)the exchange of:
(A)email correspondence between the parties;
(B)any fee proposal, Quote, or other written document; or
(C)the Client ticking the acceptance checkbox on a Quote,
wherein the AI Audit and/or consulting Services and price are agreed, constitute agreement in writing for the purposes of this agreement; and
(iii)the terms and conditions of this agreement will apply to the provision of the AI Audit and any other consulting Services.
2.4 Change Requests
(a)For the purposes of this agreement, a Change Request is a written request by a party for an amendment to the Services, Deliverables or any other term of a SOW, together with such information as is reasonably necessary to enable a party to consider the request. specific
(b)Either party may request a change to a SOW (Amending Party) by preparing a Change Request at the Amending Party’s cost.
(c)The Amending Party must prepare the necessary amendments required to a SOW and submit those to the other party for consideration.
(d)If Ludora is the Amending Party, the Change Request must include details of all costs associated with giving effect to the Change Request.
(e)If the Client is the Amending Party, Ludora must provide a written estimate of all costs related to giving effect to the Change Request within five (5) Business Days of receipt of the Change Request.
(f)Both parties must sign a variation to the SOW before a Change Request is considered to have been accepted. If the parties are unable to sign off on the proposed amendments to a SOW within 10 Business Days, the Change Request is deemed to be rejected.
2.5 Acceptance Testing
(a)If and as specified in a SOW, the parties will conduct testing of the Deliverables to confirm that each Deliverable conforms with the Acceptance Criteria. If applicable, each SOW will set out the Acceptance Criteria, or the method of determining the Acceptance Criteria.
(b)After the completion of the testing and verification activities, the Client must within seven (7) days:
(i)if satisfied that the Deliverable meets the Acceptance Criteria, give Ludora written notice that it accepts the Deliverables (Acceptance); or
(ii)if the testing demonstrates that one or more of the Deliverables materially fails to meet the Acceptance Criteria or contains a Material Defect, the Client must give Ludora written notice including details of the Defective Deliverable.
(c)If the Client gives Ludora notice under clause 2.5(b)(ii), Ludora may at its discretion choose to do one or more of the following:
(i)rectify any failure, either by modifying or resupplying the Deliverable(s), in which case further testing may be conducted in accordance with this clause 2.5; or
(ii)pursue such compromise regarding acceptance as the parties may agree in writing from time to time.
(d)A Deliverable will be deemed to have been accepted if:
(i)a SOW states that testing is not required for that Deliverable, in which case acceptance will be deemed three (3) Business Days following delivery, unless the Client notifies Ludora of a failure or any other issue of concern with that Deliverable; or
(ii)the Client does not give Ludora a written notice pursuant clause 2.5(b) within the specified timeframe,
(Deemed Acceptance).
(e)Ludora will provide a warranty period on all Deliverables for 30 days from Acceptance or Deemed Acceptance as the case may be (Warranty Period).
(f)Ludora will remedy a Defect in a Deliverable provided that the Client gives Ludora written notice of the Defect during the Warranty Period.
(g)The Warranty Period does not apply to:
(i)issues arising from changes made by the Client or any third party after Acceptance or Deemed Accepted;
(ii)issues caused by changes in a Third Party Tool after Acceptance or Deemed Acceptance;
(iii)issues caused by misuse, neglect, or use outside the intended purpose;
(iv)issues arising from Client materials or information that was inaccurate, incomplete, or changed after delivery to Ludora.
3. Compensation
3.1 Fees
(a)Subject to clause 2.4, Ludora’s Fees for the Services and Deliverables provided to the Client will be set out in the relevant Quote, SOW or as agreed between the parties in writing.
(b)The Client must pay Ludora the Fees, plus GST at the then prevailing GST rate, at the intervals set out in the relevant SOW.
(c)If a SOW or Quote specifies that Fees are to be pre-paid, Ludora will not provide any Services until the pre-paid Fees have been paid.
(d)Ludora must issue an invoice to the Client setting out the Fees in accordance with the relevant SOW or Quote.
(e)The Fees must be paid within seven (7) days of Ludora providing the relevant invoice to the Client. Invoices sent electronically will be considered ‘received’ on the day that the invoice is emailed to the Client.
(f)If the Client fails to pay any part of an invoice to Ludora by the due date, Ludora may charge daily interest on the outstanding amount for each day that it is outstanding at the rate of 2% per month or part thereof.
(g)The Client hereby indemnifies Ludora from and against all costs and expenses arising out of the Client’s failure to pay any invoice as and when it falls due, including any interest and costs (including legal costs) associated with taking debt recovery.
3.2 Suspension
Ludora may, at its absolute discretion, suspend the provision of the Services and Deliverables in the event that the Client fails, refuses or neglects to pay its fees or disbursements within 30 days from when they fall due.
4. Parties’ Obligations
(a)Ludora:
(i)must ensure that its Personnel involved in delivering the Services are fully qualified and reasonably competent and are registered with any relevant body required by Law to carry out the duties, tasks and work to which they are assigned efficiently and competently;
(ii)will be solely responsible for arranging and bearing the cost of all permits, licences and other authorisations required to enable its Personnel to perform the Services; and
(iii)will be solely responsible for the payment of all salaries, bonuses, benefits, payroll tax, superannuation and all other compensation payable to its Personnel.
(b)Ludora must ensure that its Personnel:
(i)do not use the Client’s premises or any of the facilities provided by the Client for any purpose other than for the purpose of performing their obligations as set out in this agreement;
(ii)observe all internal regulations and rules applicable to the Client’s own staff (provided that copies of such internal rules and regulations have been provided to Ludora by the Client) and at all times conduct themselves in a professional manner;
(iii)observe and comply with all firewall, virus protection and system integrity policies and requirements notified by the Client to Ludora; and
(iv)protect security passes issued to them and return those passes to the Client on request or once performance of their obligations are complete.
(c)The Client must:
(i)provide Ludora’s Personnel with security access to the Client’s premises where required or any other premises of the Client required to carry out and perform the Services; and
(ii)ensure that the Client’s premises and any other premises of the Client which Ludora’s Personnel are required to attend is safe and complies with all relevant occupational health and safety Laws and regulations.
(d)The Client must, and the Client must procure their related entities, parties and associates not to:
(i)during the term of this agreement or within 12 months after termination of this agreement, without Ludora’s prior written consent, employ or engage Ludora’s Personnel or solicit, canvas, induce or encourage Ludora’s Personnel, to leave engagement, appointment or employment with Ludora, whether or not that person would commit a breach of that person’s obligations to Ludora; and
(ii)discriminate, harass or engage in any other conduct that would result in Ludora breaching a workplace Law.
5. Confidentiality and Privacy
5.1 Access to Confidential Information
During the Term of this agreement:
(a)the Client must, and must procure its Personnel to, grant access to its Confidential Information to Ludora and Ludora’s Personnel to the extent that it is necessary for Ludora and Ludora’s Personnel, to perform their obligations in accordance with this agreement; and
(b)Ludora will, and will procure its Personnel to, grant access to the Confidential Information of Ludora to the extent that it is necessary for the Client to perform its obligations in accordance with this agreement.
5.2 Obligation of confidentiality
(a)Each party must:
(i)unless otherwise required by law, keep any Confidential Information of the other party in strict confidence, acknowledging it to be the valuable property of the other party;
(ii)take all reasonable and necessary precautions to maintain the secrecy and prevent the disclosure of any Confidential Information of the other party;
(iii)not copy, use or allow any person to copy or use, the Confidential Information of the other party, without the prior written consent of the other party, for any purpose other than the purpose of the performance of its obligations in accordance with this agreement;
(iv)not, except in the ordinary and proper performance of its obligations under this agreement, disclose Confidential Information of the other party to any third party, without the prior written consent of the other party;
(v)not allow any unauthorised person to have access to places where Confidential Information of the other party is displayed, reproduced or stored; and
(vi)not remove, delete, erase or destroy any Confidential Information of the other party without the prior written consent from that other party.
(b)Each party may disclose to its Personnel whose duties reasonably require such disclosure, the Confidential Information of the other party on condition that the party making such disclosure ensures that each such person to whom such disclosure is made is informed of the obligations of confidentiality and remains responsible for the compliance of each such person with this clause 5.2.
5.3 Permitted disclosure of Confidential Information
(a)Each party may disclose Confidential Information of the other party if it is required by Law to disclose that information (subject to clauses 5.3(b) and 5.3(c)).
(b)Each party must notify the other party in writing immediately after it, or its Personnel, is required to disclose the Confidential Information of the other party and before it, or its Personnel, discloses any Confidential Information of the other party.
(c)If a party, or its Personnel, is required to make a disclosure of Confidential Information of the other party, the party must, and must ensure that its Personnel, disclose only the minimum information required to comply with the Law.
5.4 Security of Confidential Information
The parties must maintain effective security measures, including a data breach response plan, to protect all Confidential Information from theft, loss, damage or unauthorised access, use or disclosure.
5.5 Privacy Obligations
(a)Ludora will handle Personal Information as defined in the Privacy Act 1988 (Cth) (the Act) in accordance with this agreement and its privacy policy available on the Ludora website.
(b)Notwithstanding clause 5.5(a), if, and to the extent that, any of the Confidential Information disclosed by a party to the other party contains any Personal Information, the receiving party of that Confidential Information must:
(i)not collect, use, disclose, destroy or otherwise deal with Personal Information in a manner that would breach the Act, an Australian Privacy Principle specified in the Act and any applicable Approved Privacy Code;
(ii)take reasonable steps to implement practices, procedures and systems relating to its functions and activities which are consistent with Australian Privacy Principles specified in the Act and any applicable Approved Privacy Code, and will enable it to deal with enquiries and complaints about its compliance with the Act;
(iii)take reasonable steps to protect the Personal Information it holds from misuse, interference, loss, and unauthorised access, modification or disclosure;
(iv)immediately notify the other party if it becomes aware of any misuse, loss, unauthorised access or disclosure of Personal Information, or of any complaint or investigation; and
(v)not disclose Personal Information outside Australia and/or for a purpose other than the primary purpose of its collection, unless prior written consent has been obtained from the relevant person concerned, the other party has been duly notified, and the above obligations been complied with.
5.6 Media Releases
(a)Neither party may issue any information, publication, document or article for publication concerning the Services in any media without the prior written approval of the other party, who may place conditions on such approval.
(b)For the avoidance of doubt, Ludora may use anonymised insights, learnings, statistics and outcomes (with the Client’s Confidential Information and identifying details removed) for marketing, content and case study purposes, without obtaining the Client’s prior written approval.
6. Intellectual Property Rights
6.1 Background IP
(a)Unless specified to the contrary in a SOW, Ludora will retain all rights, title and interest in and to the Background IP.
(b)Nothing in this agreement affects Ludora’s ownership, rights and title to the Background IP used to provide the Services except that, unless the Parties specifically agree to the contrary in writing, Ludora hereby grants to the Client an irrevocable, royalty free, perpetual, non-exclusive, right to use, modify, adapt, enhance, and develop the Background IP contained in any Deliverable for the purposes of conducting the Client’s business.
6.2 Foreground IP
(a)Unless specified to the contrary in a SOW, Ludora hereby irrevocably assigns to the Client all right, title and interest Ludora may have in and to the Foreground IP and Ludora agrees to take all steps reasonably required by the Client and at the Client’s cost to perfect the Client’s Intellectual Property Rights in relation to the Foreground IP.
(b)Nothing in the foregoing is intended to restrict, or must be construed as restricting, Ludora from deriving an economic benefit from any know-how or knowledge gained through delivering the Services and Deliverables under this agreement.
6.3 Residual Rights
(a)The parties acknowledge and agree that Ludora is in the business of providing services, consulting services, and support services to third parties that are or may be substantially similar to the Services being provided to the Client under this agreement.
(b)Notwithstanding clause 6.2, the Client agrees that Ludora, its employees, and agents will be free to use and employ their general skills, know-how, and expertise, and to use, disclose, and employ any generalised ideas, concepts, know-how, methods, techniques, or skills gained or learned during the course of any Services performed or Deliverables provided under this agreement.
6.4 Excluded Work Results
If a SOW specifies that there are any ‘Excluded Work Results’, Ludora retains all Intellectual Property Rights in and to the Excluded Work Results and does not assign the Intellectual Property Rights in the Excluded Work Results to the Client.
6.5 Client’s rights
Nothing in this agreement will:
(a)affect the Client’s ownership of the Client’s Intellectual Property Rights, ideas, concepts and/or know-how; or
(b)be construed as transferring, granting, or otherwise dealing with, or having the effect of transferring, granting, or otherwise dealing with, any rights in the Client’s Intellectual Property Rights, ideas, concepts and/or know-how to any other party, (whether such Intellectual Property Rights, ideas, concepts and/or know-how exists prior to the Commencement Date or comes into existence after the Commencement Date) in any manner whatsoever.
6.6 Independent Development
The Client acknowledges that Ludora may create original works for third parties that may appear similar to the Deliverables. The Client agrees that, so long as such original work is created through use of the Background IP and does not embody and is not created with the Client’s Confidential Information or the Foreground IP, Ludora will not be prevented from independently creating such original, but similar, works for the benefit of third parties.
6.7 Noninfringement
In performing its obligations under this agreement, Ludora will avoid infringement of any patent, copyright, or trade mark, or the disclosure of any trade secret or other confidential and proprietary information or material of any third party. Ludora represents and warrants that the Client’s use and exploitation of the Deliverables will not be constrained by patents or any other Intellectual Property Rights of others.
6.8 Consequences of infringement
In the event the Deliverables include information or materials to which third parties have any rights, whether by patent, copyright, trade mark, trade secret or otherwise (Other Materials), Ludora will, without expense to the Client and in Ludora’s sole discretion either:
(a)obtain written permission from the relevant third party to include such Other Materials in the Deliverables; or
(b)modify the relevant Deliverable so as not to incorporate the Other Materials.
7. Third Party Tools
7.1 Use of Third Party Tools
(a)The Client acknowledges that in providing the Services and Deliverables, Ludora may utilise Third Party Tools to support the delivery of a Service or Deliverable to the Client.
(b)If a Third Party Tool is used to support the delivery of a Service or Deliverable to the Client, Ludora will take all reasonable steps to:
(i)only disclose the minimum information necessary to provide the Service or Deliverable; and
(ii)ensure the security of the Client’s Confidential Information, including Personal Information,
in connection with the use of any Third Party Tool, and the provisions of clauses 5 and 6 will apply.
(c)Unless specified to the contrary in a SOW, any Third Party Tool that is made available to the Client as part of the Services or Deliverables will be made available strictly on the basis of that Third Party Tool provider’s licence terms and conditions and the Client will enter into a licence agreement with the Third Party Tool provider as may be required by that Third Party Tool provider.
7.2 Recording of sessions
(a)The Client acknowledges that Ludora may use AI Tools to record and transcribe video calls. Such recordings may be used by Ludora solely for the purpose of providing the Services and Deliverables to the Client and the provision of clause 5 will apply.
(b)Ludora will inform the Client prior to the commencement of any recording, and the Client may request that recording not be used.
7.3 Output from AI Tools
(a)The Client acknowledges that:
(i)the output generated from an AI Tool (AI Output) may contain errors, inaccuracies or content that is not appropriate for the Client's specific circumstances;
(ii)AI Output should be reviewed and verified by the Client before being relied upon;
(iii)Ludora does not warrant that AI Output is free from error; and
(iv)the Client retains full responsibility for any decisions made or actions taken in reliance on AI Output delivered as part of a Service or Deliverable.
(b)To the maximum extent permitted by Law, Ludora will not be liable for any Loss or Claim arising out of or in connection with Ludora or the Client’s use of or reliance on a Third Party Tool or AI Output, except to the extent that such Loss is caused by or contributed to by an act or omission of Ludora.
8. Warranties
8.1 Limited Warranty
In addition to any rights the Client may have under any Laws, which cannot be excluded or limited, Ludora warrants that:
(a)the Services will be performed in a professional and workmanlike manner by Ludora’s Personnel having a level of skill commensurate with the requirements of this agreement; and
(b)the Deliverables (if any) will substantially conform to the specifications set out in the relevant SOW. If the Deliverable is non-conforming to the specifications set out in the relevant SOW, Ludora will correct the non-conformity promptly and at Ludora’s cost, which will be the Client’s sole remedy in relation to such non-conformity.
8.2 No warranty
Except as expressly set out in these terms and conditions (but subject to any non-excludable law or regulation), Ludora makes no warranty whatsoever in relation to the Services and/or Deliverables.
9. Independent Service Provider
9.1 Control
(a)Ludora will determine the time, place, methods, details and means of performing the Services.
(b)The Client agrees to furnish access to any Client facilities, Personnel, information (including Confidential Information), intellectual property, data, resources and equipment necessary to facilitate Ludora’s performance of the Services but Ludora will be responsible to provide the tools, know-how and equipment used to deliver the Services.
(c)The Client must ensure that all information provided to Ludora is accurate and complete in every particular.
9.2 Client’s acknowledgements
(a)The Client acknowledges that:
(i)in providing the Services and Deliverables, Ludora will be relying upon the information, data, intellectual property and resources provided to it by the Client;
(ii)Ludora will not be responsible for any advice given, conclusions reached or recommendations made if such advice, conclusion or recommendation is given by Ludora in reliance upon inaccurate or incomplete information, data or resources relating to the Client’s business;
(iii)Ludora may immediately suspend an SOW if the Client has delayed the provision of the Services or Deliverables by one week or more (for example, if the Client has failed, refused or neglected to provide sufficient access, instructions, information or materials requested by Ludora);
(iv)if the suspension continues for 30 days or more, Ludora may in its absolute discretion:
(A)invoice the Client for the next milestone, or the full remaining Fee if there are no further milestones; or
(B)immediately terminate the SOW;
(v)in the event that the Client wishes to resume a SOW that has been suspended for 15 or more days, Ludora may charge a remobilisation fee equivalent to 10% of the Fee that remains payable under the SOW on account of the re-engagement; and
(b)The Client hereby indemnifies Ludora from and against any Claim made by or against the Client or Loss suffered by Ludora arising out of or in connection with the Services or Deliverables, if such Claim or Loss is caused or contributed by the Client’s delay or failure to provide Ludora with full, complete and accurate information.
9.3 Electronic communications
(a)Ludora makes no warranty, and accepts no liability, in respect of any Loss suffered by the Client arising out of or in connection with any electronic communications sent by or to Ludora.
(b)If Ludora supplies documents to the Client electronically via any device or removable media (including USB flash drive, CD, DVD, or such other format of storage), Ludora gives no warranty whatsoever that such removal media is free from any virus, trojan, worm or other forms of malware.
(c)The Client warrants that it has taken such reasonable steps as may be required to secure its own computer and IT systems and data, including implementing a safe and secure backup process.
(d)The Client hereby:
(i)releases Ludora from and against all Claims arising out of or in connection with the exchange of electronic communications with Ludora (whether by email or via removable media); and
(ii)indemnifies Ludora from and against any Claims or Loss arising out of or in connection with a breach by the client of the warranty in clause 9.3(c).
10. Limitation of Liability
10.1 General
To the extent permitted by law, Ludora’s cumulative liability to the Client for all claims made by the Client arising under or in relation to this agreement, will not exceed, when aggregated, 100% of the Fees paid under the relevant Quote or SOW under which the liability arose.
10.2 Non-excludable terms
If a non-excludable term, condition, guarantee, or warranty applies to this agreement by operation of an applicable law (including the Australian Consumer Law), then to the maximum extent permitted by law the liability of Ludora for breach of such term, condition, guarantee or warranty will be limited to (at Ludora’s election):
(a)supplying the Service or Deliverable again; or
(b)paying the cost of having the Service or Deliverable supplied again.
10.3 Consequential loss
Ludora will not be liable for any Loss (including for the avoidance of doubt any loss, damage, liability, cost, expense, consequential loss, loss of profits, or any like claims whatsoever) arising out of or connection with:
(a)this agreement;
(b)the provision of the Services or Deliverables; or
(c)the Client’s use of the Services or Deliverables; or
(d)the Client’s operation of its business.
11. Termination
11.1 Termination by Notice
(a)Either party may terminate this agreement by giving 30 days’ written notice to the other party of its intention to do so.
(b)This agreement will continue to apply to any SOW in progress on the date of termination, until the expiration or termination of such SOW.
11.2 Termination for Breach
(a)Either party may immediately terminate the Engagement if the other party:
(i)breaches this agreement or an SOW and does not remedy that breach within a reasonable time after it is notified of the breach;
(ii)becomes Insolvent;
(iii)is convicted of an indictable offence (or an officer thereof is convicted of an indictable offence);
(iv)commits any act which materially and/or detrimentally affects the other party, including but not limited to an act of dishonesty, fraud, wilful disobedience or misconduct; or
(v)does anything which in the reasonable opinion of the other party, is likely to bring the other party into disrepute or may otherwise have an adverse effect on the other party’s reputation.
11.3 Termination of a SOW
If the Client seeks to terminate a SOW prior to Ludora commencing any work under that SOW, Ludora will refund to the Client any fees paid in connection with that SOW, less:
(a)an administrative fee of $250 plus GST which the parties acknowledge represents a genuine pre-estimate of Ludora's reasonable administrative costs in processing the cancellation; and
(b)any costs incurred or committed by Ludora to third parties in connection with that SOW prior to receipt of the Client's termination notice, provided that such costs are substantiated by third party invoices or other evidence.
11.4 Final Invoice:
(a)If this agreement is terminated for whatever reason then, within 14 days from the date of termination, Ludora will submit to the Client an itemised invoice for any fees or expenses accrued but unpaid until the date of termination of this agreement.
(b)Notwithstanding any provision to the contrary contained in this agreement, no Intellectual Property Rights will transfer to the Client unless and until Ludora’s invoices, which have been duly rendered in accordance with the terms of this agreement and the relevant Quote or SOW, have been paid in full.
11.5 Consequences of termination:
On termination or expiry of this agreement or an SOW:
(a)the parties must:
(i)immediately cease all use and disclosure of the other party’s Confidential Information; and
(ii)if there are any other materials of the other party in the possession or control of a party (or in the possession or control of its Personnel) which contain any Confidential Information of the other party or any information derived from that information, either:
(A)deliver up those materials to the other party; or
(B)delete or destroy entirely and permanently those materials or the Confidential Information of the other party or any information derived from that information contained in those materials and notify the other party in writing of such destruction;
(b)the Client must pay for:
(i)all work done up to the termination of this agreement; and
(ii)any third party costs unavoidably incurred by Ludora as a result of the termination by the Client of this agreement provided that those costs are substantiated by third party invoices or other evidence reasonably acceptable to the Client.
11.6 Rights on termination
Termination of this agreement will not limit either party from pursuing other remedies available to it, including injunctive relief. The parties’ rights and obligations under clauses 5 (Confidentiality), 6 (Intellectual Property Rights), 9 (Independent Service Provider), 10 (Limitation of Liability), and 12 (General) will survive termination of this agreement.
11.7 Continuation of this agreement
The rights and obligations under this agreement which have accrued prior to the date of expiration or termination of this agreement will continue in force, until the Services and Deliverables have been provided, notwithstanding that this agreement is no longer in force.
12. Relationship
(a)The relationship between the parties is that of principal and independent contractor with respect to each other.
(b)Nothing contained in this agreement, a SOW or a Quote will create an association, partnership, joint venture or employment relationship between the Client and Ludora.
(c)This agreement, a SOW or a Quote does not authorise a party to bind or create any obligation on behalf of the other party except as expressly permitted in this agreement or a SOW.
(d)If either party becomes aware of an actual or potential conflict of interest, it will notify the other party as soon as is reasonably practicable, and the parties will work together to resolve any such actual or potential conflict.
13. Dispute resolution
(a)The parties must endeavour to settle any dispute arising out of or relating to this agreement or any SOW, including with regard to its existence, validity or termination, by mediation administered by the Australian Disputes Centre (ADC) before having recourse to arbitration or litigation.
(b)The mediation shall be conducted in accordance with the ADC Guidelines for Commercial Mediation operating at the time the matter is referred to ADC (the Guidelines).
(c)The terms of the Guidelines are hereby deemed incorporated into these terms and conditions.
(d)This clause shall survive termination of the agreement.
14. General
14.1 Assignment
(a)Neither party may assign the agreement without the other party’s consent.
(b)Notwithstanding the foregoing, either party may assign this agreement to a wholly owned subsidiary or in connection with a restructure, merger, acquisition or sale of all or substantially all of its assets without the other party’s prior written consent.
14.2 Waiver
(a)The failure of either party at any time to require performance by the other party of any provision of this agreement does not affect the party’s right to require the performance at any time.
(b)The waiver by either party of a breach of any provision of this agreement may not be held to be a waiver of any later breach of the provision or a waiver of the provision itself.
14.3 Applicable Laws
This agreement will be construed according to the Laws of Victoria, Australia and the parties submit to the jurisdiction of the Courts of Victoria, Australia.
14.4 Severance
If any provision of this agreement is prohibited, invalid or unenforceable in any jurisdiction, that provision may be severed to the extent of the prohibition, invalidity or unenforceability without invalidating the remaining provisions of this agreement.
14.5 Further Assurances
Each party must do, sign, execute and deliver and must procure that each of its employees and agents does, signs, executes and delivers all deeds, documents, instruments and acts reasonably required of it or them by notice from the other party to carry out and give full effect to this agreement and the rights and obligations of the parties under it.
14.6 Counterparts
This agreement and any SOW may be executed in several counterparts, all of which when taken together constitute one and the same instrument. The exchange of an executed agreement or SOW (in counterpart or otherwise) electronically and by email will be sufficient to bind the parties to the terms and conditions of this agreement and the relevant SOW. For the avoidance of doubt, the Client’s acceptance of a Quote by ticking the checkbox constitutes valid execution of this agreement.
14.7 Costs
Each party will be responsible for their own costs incurred in the preparation and execution of this agreement.
14.8 Entire agreement
This agreement constitutes the entire agreement between the Parties in relation to its subject matter. No understanding, arrangement or provision not expressly set out in this agreement will bind the Parties.
14.9 Variation
No change or modification of this agreement will be valid unless made in writing and signed by both Parties.
15. Definitions
In this agreement:
Acceptance Criteria means any standards or specifications or other requirements for the Deliverables and Ludora’s performance of its obligations set out in this agreement or a SOW;
AI Audit means the initial consulting services provided by Ludora to the Client, consisting of a discovery call, deep-dive call, written roadmap deliverable, playback call and follow up calls;
AI Tool means a tool provided by a third party that uses computers or other technology to do things that have traditionally been done using human intelligence and includes techniques, methods and algorithms designed to imitate human reasoning, learning and decision making in a manner that resembles human intelligence including without limitation Anthropic Claude, Notion, Make, n8n, Zapier and Replit;
Background IP means:
(a)any Intellectual Property Right in or to any components of the Foreground IP which existed prior to the commencement of the Services provided under the relevant SOW;
(b)any Intellectual Property Rights in or to any materials which existed prior to the commencement of the Services provided under the relevant SOW or from which the Foreground IP was derived from the provision of such Services and includes, without limitation, Ludora’s methodologies, tools, processes, tests, know-how and proposals;
Business Day means Monday to Friday, excluding public holidays in Melbourne, Victoria;
Claim means any claim, demand or cause of action whether arising in contract, tort, under statute or otherwise;
Commencement Date means the date that the Client signs or otherwise accepts this agreement, including by signing a SOW or ticking the acceptance checkbox on a Quote, either of which confirm that the Client has read and agrees to be bound by these terms and conditions;
Confidential Information means, in relation to each party (for the purposes of this definition, the “Discloser”):
(a)all information relating to or owned or used by the Discloser or any of its Related Bodies Corporate, including know-how, trade secrets, ideas, marketing strategies and operational information;
(b)all information concerning the business affairs (including products and services) or property of the Discloser or any of its Related Bodies Corporate, including any business, property or transaction in which the Discloser or any of its Related Bodies Corporate may be or may have been concerned or interested;
(c)any other information disclosed by or on behalf of the Discloser or any of its Related Bodies Corporate; and
(d)the Discloser’s data, including any such information made available to the Discloser or any of its Related Bodies Corporate by any third party,
(e)but excluding any information: (i) which is publicly known or becomes publicly known other than by breach by the other party or any other obligation of confidentiality; (ii) which is disclosed to the other party without restriction by a third party and without any breach of confidentiality by the third party; or (iii) is developed independently by the other party without reliance on or use of any of the Discloser's Confidential Information;
Defect or Defective means an aspect of a Service or Deliverable that does not comply with the Acceptance Criteria or has a Material Defect;
Deliverables means the deliverables which Ludora agrees to provide to the Client under a SOW;
Excluded Work Results means any work results which have been so specified in a SOW; and any computer software or program development tool not included in the Foreground IP, which Ludora uses to perform the Services;
Fee means the fee payable by the Client to Ludora as specified in a relevant Quote, SOW or otherwise agreed in writing between the parties;
Foreground IP means the Intellectual Property Rights that are created by Ludora in all Deliverables and other things produced or developed by Ludora in the performance of the Services under this agreement and a SOW, excluding any Excluded Work Results;
GST means the tax imposed by A New Tax System (Goods and Services Tax) Act 1999 (Cth) and the related imposition Acts of the Commonwealth of Australia;
Insolvent means a party:
(a)becomes insolvent within the meaning of the Corporations Act 2001 (Cth);
(b)is placed into liquidation, administration, or has a receiver or manager appointed in respect of its assets;
(c)enters into an arrangement or composition with its creditors;
(d)commits an act of bankruptcy; or
(e)becomes bankrupt within the meaning of the Bankruptcy Act 1966 (Cth);
Intellectual Property Rights means any rights in or to any patent, copyright, database rights, registered design or other design right, utility model, trade mark (whether registered or not and including any rights in get up or trade dress), brand name, service mark, trade name, eligible layout right, chip topography right and any other rights of a proprietary nature in or to the results of intellectual activity in the industrial, commercial, scientific, literary or artistic fields, whether registrable or not and wherever existing in the world, including all renewals, extensions and revivals of, and all rights to apply for, any of the foregoing rights;
Law includes any law, statute, regulation, ordinance, authorisation, ruling, judgement and any other order or decree of any governmental agency in any jurisdiction;
Loss means any liability, cost or expense suffered or incurred by a party (whether actual or contingent);
Material Defect means a failure of a Deliverable to substantially conform to the Acceptance Criteria set out in the SOW, where the failure:
(a)is reproducible (not a one-off occurrence the Client cannot reproduce);
(b)is documented in writing by the Client with sufficient detail to enable Ludora to investigate and reproduce the issue;
(c)relates to scope expressly defined in the SOW (and not to new requirements, changes in preference or scope outside the SOW); or
(d)materially impairs the use of the Deliverable for its intended purpose,
(e)but does not include:
(f)aesthetic, stylistic or preference based feedback;
(g)requests for features, functionality or scope not expressly included in the SOW;
(h)issues caused by Client error, Client systems, Third Party Tools or other third party services;
(i)issues arising from inaccurate, incomplete or out-of-date information provided by the Client;
(j)performance characteristics that the SOW did not specify; and
(k)changes in the functionality of a Third Party Tool including its pricing or availability after delivery;
Personal Information has the same meaning as defined in the Privacy Act 1988 (Cth) “information or an opinion about an identified individual, or an individual who is reasonably identifiable whether the information or opinion is true or not; and whether the information or opinion is recorded in a material form or not”;
Personnel means all employees, officers contractors and subcontractors of a party and its related entities;
Quote means a quote issued by Ludora to the Client setting out the Services to be supplied, and the fees for such services;
Related Bodies Corporate has the same meaning ascribed to that term in the Corporations Act 2001 (Cth);
Services means the Services to be provided by Ludora to the Client as set out in the relevant SOW or as otherwise agreed between the parties in writing;
SOW / Statement of Work means the description of the engagement including the scope of Services and/or Deliverables to be provided and the Fees;
Third Party Tool means any third-party software, platform, application, service or AI Tool provided by a third party that is recommended, configured or used in connection with the Services or forming part of a Deliverable, and includes without limitation open source code;
Term means the term of this agreement as specified in clause 1; and
Termination Date means the date on which this agreement is terminated in accordance with the terms and conditions of this agreement.