Consulting Terms & Conditions

1. Precedence & Interpretation

1.1 Precedence
If there is any conflict or ambiguity in interpretation, the documents identified in this clause 1.1 are to be read in the following order of precedence (that is, (a) has the highest order of precedence)

(a)      Statement of Work Change Requests
(b)      Statement of Work;
(c)      these Terms and Conditions;

These Terms and Conditions operate to the exclusion of any other terms and conditions including those on or accompanying any documentation, forms or correspondence authorised or provided by or on behalf of Picnic.

1.2 Interpretation
In this Agreement, unless the contrary intention appears:
(a)      the singular includes the plural and vice versa;
(b)      words denoting individuals or persons include corporations and vice versa;
(c)      headings are for convenience only and do not affect interpretation;
(d)      references to an agreement or document are to that agreement or document (and, where applicable, any of its provisions) as amended, novated, supplemented or replaced from time to time;
(e)      references to any party to this Agreement include that party’s executors, administrators, substitutes, successors and permitted assigns;
(f)       a reference to “$”, unless otherwise specified, is a reference to Australian dollars;
(g)      a reference to a recital, clause, Schedule or Attachment is to a recital, clause, Schedule or Attachment of or to this Agreement;
(h)      a reference to a law:
          i.    includes a reference to any legislation, judgment, rule of common law or equity or rule of any applicable stock exchange;
          ii.   is a reference to that law as amended, consolidated, supplemented or replaced; and
          iii.  includes a reference to any regulation, rule, statutory instrument, by-law or other subordinate legislation made under that law; and
(i)       the word “including” means “including without limitation” and “include”, “includes” and “in particular” must be construed similarly.

2. Fees, Expenses and Costs

3. Taxes

3.1 GST
In this clause:
(a)      GST means the tax payable on taxable supplies under the GST Law; and
(b)      GST Law means the A New Tax System (Goods and Services Tax) Act 1999 (Cth) and any related Act imposing such tax, and includes any subordinated legislation in respect of those Acts.
(c)      Where Service Charges (or other consideration payable in relation to the taxable supply) are not expressed to be GST inclusive, the recipient of a taxable supply must, subject to the issue of a valid Tax Invoice by the supplier to the recipient, pay to the supplier in addition to those Service Charges or other consideration payable an additional amount on account of any GST payable.
(d)     If:
          i. a payment to satisfy a claim under or in connection with this Agreement (for example, under an indemnity) gives rise to a liability to pay GST then the payer must pay, and indemnify the payee on demand against, the amount of that GST; and
         ii. a party has such a claim for a cost or expense on which that party must pay GST, then the claim is for the cost plus all GST (except any GST for which that party can obtain an input tax credit).

4. Liability

4.1 Limitations of Liability
(a)      To the extent permitted by law, each party agrees to indemnify, and keep indemnified the other party from and against all claims, proceedings, expenses, costs (including legal costs on a solicitor and own client basis), damages, losses and other liabilities of any kind arising directly or indirectly from any breach of any term or condition of this Agreement, except to the extent of liability which is caused by a willful or negligent act or omission of that party.
(b)      Neither party will be liable to the other party in any circumstances for any indirect, special or consequential loss or damage, including but not limited to loss of revenue, loss of production, loss of product, loss of contract or loss of profits howsoever arising and whether in an action in contract, tort (including without limitation, negligence), in equity, product liability, under statute or on any other basis.
(c)      Notwithstanding anything to the contrary in this Agreement, the liability of a party to the other party under this Agreement shall not exceed the aggregate sum of fees paid to Picnic for the Statement of Work to which the claim relates, provided that this clause shall not operate to limit the liability of a party arising out of or caused by:
          i. death or personal injury resulting from negligence,
          ii. fraud,
          iii. breach of Law,
          iv. breach of Confidence or Privacy.

5. Confidentiality & Privacy

5.2 Disclosure
Except as permitted or required by this Agreement, neither party may disclose to any other person any of the other party's Confidential Information, provided that each party may disclose the Confidential Information of the other party:
(a) when required to do so by law or any regulatory authority, including any stock exchange on which it or any of its Affiliates is listed; and
(b) to its personnel whose duties reasonably require such disclosure, on condition that the party making such disclosure ensures that each 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.

5.5 Privacy
Picnic agrees that it will comply with all privacy legislation including, but not limited to, the requirements imposed by the Privacy Act 1988 (Cth), and any privacy policy of the Customer as notified to Picnic from time to time. Without limiting the general nature of the immediately preceding paragraph, Picnic must:
(a)      only process, use or disclose Personal Information collected in the course of and as required for the purpose of fulfilling its specific functions, activities and obligations under this Agreement;
(b)      except as provided in subclause 5.5 (a) above or as required by law, not disclose without the written permission of the Customer any Personal Information obtained in connection with this Agreement;
(c)      take all reasonable steps to prevent the misuse or loss of and unauthorised use, modification, access and disclosure of Personal Information by Picnic, its employees and agents;
(d)      ensure that only employees or agents who are authorised to fulfil the obligations of Picnic and who need to have access to any Personal Information have access to the particular Personal Information;
(e)      upon completion of its obligations under this Agreement, return to the Customer, all copies of the Personal Information and any record of the Personal Information. Picnic may, in accordance with the Customer's directions in writing, destroy the Personal Information (and any copies thereof) and any record of the Personal Information;
(f)      notify the Customer immediately if at any time Picnic has breached, believes it may have breached, or is aware that it is alleged to have breached, its privacy and security obligations under this Agreement and at law, or becomes aware that a disclosure of Personal Information may be required by law.

6. Solicitation

7. Intellectual Property

7.1 All Picnic Intellectual Property Rights Remain Vested in Picnic
(a) All Intellectual Property Rights in Picnic’s IP, including Background IP and Foreground IP including in any documents, reports, databases, data, software, processes, methodologies and other materials created by Picnic in the normal course of business or in the course, or as a consequence of, fulfilling its obligations under this Agreement (whether existing in a tangible or intangible form or format) and any enhancements made to Picnic’s Background IP remain vested in Picnic.
(b) Picnic grants the Customer the right to use Picnic IP where such use is necessary for the Customer to benefit from the services and goods provided under this Agreement.

7.2 All Customer Intellectual Property Rights Remain Vested in Customer
(a) All Intellectual Property Rights in Customer’s IP, including Background IP and Foreground IP including in any documents, reports, databases, data, software, processes and other materials which are in existence at the time of this Agreement and any further IP which Customer creates without the assistance of Picnic during the course of this Agreement remains vested in Customer.
(b) The Customer grants Picnic the right to use the Customer IP where such use is necessary for the performance of this Agreement.