The terms below are our general terms of business, and are incorporated into many contracts between Agilyx and its Customers.
Capitalised words and phrases in these General Terms of Business have their meaning from the Dictionary.
In the Agreement, unless it is provided otherwise, the Rules of Interpretation apply.
The parties each represent and warrant that they:
have the right and are duly authorised to enter into the Agreement; and
if they are entering the Agreement as a trustee of any trust, they do so in their capacity as a trustee and separately in their own right.
The Agreement is governed by the laws applicable to the Agilyx contracting entity specified on the Order Form and according to the table below. Each party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts of that jurisdiction any courts which have jurisdiction to hear appeals from any of those courts in respect of any proceedings in connection with the Agreement.
| Agilyx Entity | Company Number | Jurisdiction |
|---|---|---|
| Agilyx Pty Limited | ACN 091 232 156 / ABN 23 091 232 156 | New South Wales, Australia |
| Agilyx EMEA Limited | 13427137 | England and Wales |
| Agilyx Africa (Pty) Ltd | 2016/053725/07 | Republic of South Africa |
| Agilyx NZ Limited | NZCN 3849436 / NZBN 9429030652194 | New Zealand |
| Agilyx Ireland Services Ltd | 719304 | Republic of Ireland |
| Agilyx Solutions Limited | BN 781255724 | British Columbia, Canada |
| Agilyx Solutions LLC | EIN 37-1830144 | WY, USA |
| Agilyx Sdn Bhd | 1218770-D | Malaysia |
| Agilyx Pte Ltd | UEN 201702735R | Republic of Singapore |
Should a dispute arise between the parties in relation to the Agreement then prior to pursuing any legal rights, other than seeking urgent interlocutory rights, the aggrieved party must provide written notification of the problem to the Managing Director (or equivalent position) of the other party, the details of whom are notified in writing by that other party. Both parties shall then use all reasonable endeavours to resolve the dispute within 30 days of receiving this notice. Should there still be no resolution then the aggrieved party is entitled to pursue its legal rights.
A notice or other communication to a party in connection with the Agreement must be written in English and delivered to that party in one of the following ways:
delivered personally, where the party which sent the notice or communication holds a receipt for it, signed by a person employed by the intended recipient;
posted to their physical address, where it will be treated as having been received on the third Business Day after posting; or
sent by email to their email address, when it will be treated as received when it enters the recipient’s information system.
A party to the Agreement that receives Confidential Information (the Receiving Party) from the other party (the Disclosing Party) must:
use the Disclosing Party’s Confidential Information solely for the purpose of, and solely to the extent necessary for, exercising the Receiving Party’s rights and complying with the Receiving Party’s obligations under the Agreement;
only disclose the Disclosing Party’s Confidential Information to those of the Receiving Party’s employees, agents, Associates and contractors to whom, and to the extent that, such disclosure is reasonably necessary for the purpose of exercising the Receiving Party’s rights and complying with the Receiving Party’s obligations under the Agreement; and
take steps (so far as is reasonably practicable) to maintain effective and adequate security measures to:
safeguard the Disclosing Party’s Confidential Information from access or use by unauthorised persons;
keep the Disclosing Party’s Confidential Information under the Receiving Party’s control; and
ensure that any of the Receiving Party’s employees, agents, related corporate entities and contractors who receive Confidential Information are subject to documented confidentiality obligations which are at least as restrictive/onerous as the provisions of the Agreement.
The provisions in this clause will not apply to Confidential Information, to the extent that the Confidential Information:
was, before the Receiving Party received such Confidential Information from the Disclosing Party, in the Receiving Party’s possession without any obligations of confidence;
is independently acquired or developed by the Receiving Party without breaching any of the Receiving Party’s obligations under the Agreement and without use of any other Confidential Information of the Disclosing Party;
is subsequently disclosed to the Receiving Party, without any obligations of confidence, by a third party who has not derived it, directly or indirectly, from the Disclosing Party;
is or becomes generally available to the public through no act or default of the Receiving Party or any of the Receiving Party’s employees, agents, related corporate entities or subcontractors; or
is used in relation to legal proceedings or is required to be disclosed by law or to the courts of any competent jurisdiction, or to any government regulatory or financial authority.
The obligations contained in the provisions of this clause shall survive termination or expiry of the Agreement.
A party must notify the other party in writing immediately if one or more of the following occurs or is proposed (each a Notifiable Event), the party:
ceases to carry on business as a going concern;
ceases to be able to pay its debts as they become due;
is the subject of any application or legal proceedings, or an action by a creditor or other person, in its domestic jurisdiction or overseas which relates to bankruptcy, insolvency, administration, receivership, liquidation or an assignment for the benefit of creditors.
If a Notifiable Event happens to a party, the Agreement may be terminated immediately by the other party giving written notice.
All prices or other sums payable or consideration to be provided in connection with the Agreement are exclusive of applicable Sales Taxes.
If a Sales Tax is payable on any supply made or any amount receivable by a party (or any entity through which that party acts) (Supplier) under or in connection with the Agreement, the payer/recipient will pay to the Supplier an amount equal to the Sales Tax payable on the supply in addition to, and at the same time, that the consideration for the supply or payment is to be paid/made.
Where a party is required under the Agreement to pay or reimburse an expense or outgoing of another party, the amount to be paid or reimbursed by the first party will be the sum of:
the amount of the expense or outgoing less any credits under the applicable Sales Tax scheme the party is entitled to in respect of the expense or outgoing; and
if the payment or reimbursement is subject to Sales Tax, an amount equal to the Sales Tax imposed.
The provisions of this ‘Sales Tax’ clause shall survive termination or expiry of the Agreement.
Under an Agreement incorporating these General Terms of Business, some fees and charges may be subject to indexation. Where it is stated that a fee, charge or rate (or set of rates) are ‘indexed’, ‘subject to indexation’ or any similar terms, those fees, charges or rate(s) will increase where there is an increase in relevant CPI Metric set out below according to the contracting jurisdiction. This is subject to where an Agreement specifically provides for a different rate. The increase will be calculated as at the date of Agilyx’s invoice for the next payment and according to the table below.
| Jurisdiction | CPI Metric |
|---|---|
| Australia | The percentage change in the Australian Consumer Price Index (weighted average eight capital cities, all groups index), as published by the Australian Bureau of Statistics for the preceding 12 months, plus 2% |
| England and Wales | The percentage change over 12 months in the Consumer Prices Index including owner occupiers’ housing costs (CPIH) for all items as published by the Office of National Statistics, plus 2% |
| South Africa | The percentage change year on year in the Consumer Price Index as published by the Department of Statistics South Africa, plus 2% |
| New Zealand | The percentage annual change in the New Zealand Consumers Price Index, as published by Stats NZ, plus 2% |
| Ireland | The annual percentage change in the Consumer Price Index, as published by the Central Statistics Office, plus 2% |
| Canada | The 12-month percentage change in the Consumer Price Index, as published by Statistics Canada, plus 2% |
| United States of America | The 12-month percentage change in the Consumer Price Index, All Items, as published by the US Bureau of Labor Statistics, plus 2% |
| Malaysia | The percentage change in the Consumer Price Index Malaysia, as published by the Australian Bureau of Statistics Department of Statistics Malaysia for the preceding year, plus 2% |
| Singapore | The year-on-year percentage change in the Singapore Consumer Price Index (All Items), as published by Statistics Singapore for the same period in the previous year, as at the date of the increase, plus 2% |
No party may assign its rights or obligations under the Agreement without the prior written consent of the other parties, which consent may be given or withheld, or given on conditions, in the absolute discretion of those other parties.
A party’s failure or delay to exercise a power or right does not operate as a waiver of that power or right.
The exercise of a power or right does not preclude:
its future exercise; or
the exercise of any other power or right.
The variation or waiver of a provision of an Agreement or a party’s consent to a departure from a provision by another party will be ineffective unless in writing and executed by the parties.
The Agreement is the whole and entire agreement in relation to its subject matter between the parties and supersedes all oral and written communications by or on behalf of any of the parties.
Any provision of, or the application of any provision of the Agreement, which is prohibited, void, illegal or unenforceable in any jurisdiction:
is, in that jurisdiction, ineffective only to the extent to which it is void, illegal, unenforceable or prohibited;
does not affect the validity, legality or enforceability of that provision in any other jurisdiction or of the remaining provisions of the Agreement in that or any other jurisdiction; and
is severable from the Agreement and will not affect the remaining provisions of the Agreement, and
the application of this subclause is not limited by any other provision of the Agreement in relation to severability, prohibition or enforceability.
Each party will do, sign, execute and deliver all agreements, documents, instruments and acts reasonably required of it by notice from another party to effectively carry out and give full effect to the Agreement and the rights and obligations of the parties under it.
Nothing in the Agreement excludes, restricts or modifies any condition, warranty, right or remedy conferred on the Customer by the Competition and Consumer Act 2010 (Cth) or any other applicable law that cannot be excluded, restricted or modified by agreement.
