THE EFFECTIVE DATE OF THIS AGREEMENT IS THE DATE ON WHICH THE CONSULTING ORDER FORM IS EXECUTED BY OCTANE SOLUTIONS AND THE CUSTOMER

PARTIES OCTANE SOFTWARE SOLUTIONS PTY LTD (ABN 45 608 817 492)
and
The party described in the Consulting Order Form as the Customer

INTRODUCTION

A. The Customer wishes to obtain OCTANE SOLUTION’s Services.

B. OCTANE SOLUTION has agreed to provide the Services to the Customer, in accordance with the Standard Terms and Conditions set out in this document and the Consulting Order Form.

C. This document sets out the Standard Terms and Conditions and these Standard Terms and Conditions are to be read together with the Consulting Order Form.

D. Together, the Consulting Order Form and these Standard Terms and Conditions are called this Agreement.

E. If there is an inconsistency between the Consulting Order Form and these Standard Terms and Conditions, the terms in the Consulting Order Form will take precedence over these Standard Terms and Conditions.

IT IS AGREED as follows:

1.Definitions

1.1 In the Agreement, unless the contrary intention appears:

“Acceptance” means the completion of OCTANE SOLUTION’s work in providing the Services, Deliverables, and test results (if any) specified in the Consulting Order Form which is to be achieved in the course of Acceptance Tests;

“Acceptance Tests” means the tests (if any) described in the Consulting Order Form.

"Additional Charges" means fees and expenses over and above those specified in the Consulting Order Form and which are in accordance with OCTANE SOLUTION's standard time and materials rates in effect from time to time;

"Agreement” means the agreement between the Parties for the provision of Services being the Consulting Order Form and these Standard Terms and Conditions;

“Octane Solutions Representative” means OCTANE SOLUTION’s authorised representative as nominated in the Consulting Order Form;

"Charges" means the fees and expenses payable by the Customer to OCTANE SOLUTION under this Agreement including any Additional Charges.

“Claim” means as defined in clause 12.

"Confidential Information” means all information which is disclosed by a party (“Discloser”) to the other (“Recipient”) verbally, electronically, visually, or in written or another tangible form which is identified as, or by its nature reasonably understood to be, confidential or proprietary. OCTANE SOLUTION’s Confidential Information includes its policies, strategies, Deliverables, the terms, and conditions of the Agreement including pricing and any proposals or other documents whether disclosed prior to or after the date of the Consulting Order Form.

“Customer” means the customer named in the Consulting Order Form.

"Deliverable" means were specified in the Consulting Order Form, any specific result or outcome of the Services to be provided to the Customer and includes any associated materials developed by OCTANE SOLUTION including software provided by IBM through its representatives in Australia –Octane Solutions, and all in accordance with the Consulting Order Form;

"Force Majeure” means a circumstance beyond the reasonable control of a Party which results in that Party being unable to observe or perform on time an obligation (other than an obligation to pay money). Such circumstances include but are not limited to:

• acts of God, lightning strikes, earthquakes, floods, storms, explosions, fires, and any natural disaster.

• acts of war, acts of public enemies, terrorism, riots, civil commotion, malicious damage, sabotage, and revolution.

• strikes; and

• the acts or omissions of the other Party

"Intellectual Property Rights” means any industrial o intellectual property rights including copyright, trademark, design, patent, and any other rights.

"Party" means either OCTANE SOLUTION or the Customer as the context dictates;

"Services" means the services and any Deliverables specified in the Consulting Order Form;

"Standard Terms and Conditions" means these OCTANE SOLUTION standard terms and conditions for the provision of Services.

“Subcontractors” means as defined in clause 3.8.

2. Interpretation

2.1 In this Agreement, unless the contrary intention appears:

1. the clause headings are for convenient reference only and have no effect in limiting or extending the language of the provisions to which they refer;

   
   

2. a cross-reference to a clause number is a reference to its subclauses;

   
   

3. words in the singular number include the plural and vice versa.

   
   

4. words importing a gender include any other gender;

   
   

5. a reference to a person includes a partnership and a body, whether corporate or otherwise;

   
   

6. a reference to a clause is a reference to a clause or subclause of these Standard Terms and Conditions or the Consulting Order Form as the context requires;

   
   

7. where a word or phrase is given a particular meaning, other parts of speech and grammatical forms of that word or phrase have corresponding meanings;

   
   

8. monetary references are references to Australian currency.

   
   

3. Services

3.1 OCTANE SOLUTION will provide the Services and any Deliverable in accordance with the Agreement. If there is any conflict or inconsistency between the Consulting Order Form and these Standard Terms and Conditions, the Consulting Order Form prevails to the extent of that inconsistency.

3.2 OCTANE SOLUTION may exercise its independent discretion as to the most appropriate and effective manner of providing the Services and of satisfying the Customer's expectations of those Services.

3.3 The person named in the Consulting Order Form as the OCTANE SOLUTION Representative, will be assigned to the Customer to handle all Customer queries, issues and any other matters relating to the Services on a needs by basis. OCTANE SOLUTION may advise the Customer of a change to its nominated representative from time to time.

3.4 Any services requested by the Customer which are not described in the Consulting Order Form will be provided at OCTANE SOLUTION’s discretion and may be subject to an Additional Charge.

3.5 Timeframes set out in the Consulting Order Form are estimated timeframes and provided as a guideline only. OCTANE SOLUTION will make all reasonable efforts to adhere to such timeframes. Any delay by OCTANE SOLUTION in complying with a timeframe will not discharge the obligation of the Customer to pay the Charges invoiced by OCTANE SOLUTION.

3.6 In the event that:

1. the provision of the Services is delayed;

2. OCTANE SOLUTION is required to supply the Deliverables in circumstances other than those expressly or reasonably assumed or contemplated by the Consulting Order Form; or

3. there is a change in the timing or complexity of the Services; for reasons other than a breach of the Agreement by OCTANE SOLUTION, then OCTANE SOLUTION may require the Customer to pay Additional Charges on a time and materials basis in respect of additional time required or resources reasonably utilised in order to fulfil its obligations.

3.7 OCTANE SOLUTION may, at its discretion, be required to subcontract with third parties to perform the Services. However, no subcontract will relieve OCTANE SOLUTION of its obligations to the Customer.

3.8 Without derogating from the generality of the foregoing, OCTANE SOLUTION may at any time during the term of this Agreement and at its own discretion, provide all or part of the Services to the Customer by sub-contracting it to its authorised consultants (“Subcontractors”). These Subcontractors are not employed by the CFO Group, but are external contractors engaged by CFO purposely for the supply of the Services in accordance with the Consulting Order Form.

3.9 Subject to clause 4, Services (and all Deliverables) will be deemed accepted by the Customer upon completion of the Services in accordance with the Consulting Order Form.

4. Acceptance

4.1 This clause only applies if it is specified in the Consulting Order Form that a Deliverable is to be subject to Acceptance Tests.

4.2 Unless otherwise agreed between the Parties, the Customer must test the Deliverable in accordance with the Acceptance Criteria within the period specified in the Consulting Order Form (or such other period as is agreed between the Parties).

4.3 OCTANE SOLUTION must provide all reasonable assistance to enable the Customer to conduct the Acceptance Tests.

4.4 The Customer will be responsible for the preparation of all necessary acceptance test data specified in or relevant to the Acceptance Criteria.

4.5 OCTANE SOLUTION will be entitled to observe and, to the extent considered reasonable by OCTANE SOLUTION, participate in the conduct of the Acceptance Tests.

4.6 In the event the Customer fails to complete the Acceptance Tests within the timeframe specified in the Consulting Order Form for reasons other than delay caused solely by OCTANE SOLUTION, the Customer will be deemed to have accepted the Deliverable.

4.7 Upon completion of the Acceptance Tests:

1. OCTANE SOLUTION will, if requested by the Customer, provide a written summary of the Acceptance Tests and the results achieved during the Acceptance Tests; and

2. the Customer will within two (2) days (or such other period as is specified in the Acceptance Criteria) provide OCTANE SOLUTION with written acknowledgment of acceptance of the Deliverable or a notice outlining any failure of the Deliverable to meet the Acceptance Criteria.

4.8 If the Customer has not provided the written acknowledgement of acceptance and has not notified OCTANE SOLUTION of any failure of the Deliverable to meet the Acceptance Criteria, within the timeframe required by clause 4.7(b), then the Customer will be deemed to have accepted the Deliverable and the Services.

4.9 If the Customer provides OCTANE SOLUTION with a notice of a failure of a Deliverable to meet the Acceptance Criteria, OCTANE SOLUTION must use reasonable endeavors to promptly rectify the failure and notify the Customer when rectification is completed. The Customer will then repeat the Acceptance Tests.

5. Customer’s Obligations

5.1 Where the Services are to be provided at the Customer’s premises:

1. the Customer will provide a safe workplace and all necessary access, equipment, materials, information, facilities, services and accessories reasonably required by OCTANE SOLUTION for the performance of the Services;

2. OCTANE SOLUTION will comply with the Customer’s reasonable directions and such reasonable policies and procedures as are provided to OCTANE SOLUTION;

3. the Customer must provide a suitably qualified or informed representative, agent or employee to accompany OCTANE SOLUTION personnel.

5.2 The Customer contact nominated in the Consulting Order Form will be OCTANE SOLUTION’s primary contact unless OCTANE SOLUTION is otherwise notified in writing by the Customer and the Customer contact must be authorized to:

1. advise OCTANE SOLUTION on project requirements, access, security procedures and any other matter within the Customer's knowledge or control which will assist OCTANE SOLUTION in complying with its obligations under the Agreement;

2. make timely decisions on behalf of the Customer as requested by OCTANE SOLUTION to move the Services forward.

5.3 In addition to theperson referred to in clause 5.2, the Customer must provide sufficiently qualified and knowledgeable resources who are capableof performing any Customer obligations and such other tasks as may be reasonably required to facilitate the performance of the Services. Unless otherwise stated in the Consulting Order Form, all project management and achievement of Deliverable in relation to Services is the responsibility of the Customer.

5.4 The Customer acknowledges and agrees that the performance of the Customer’s obligations is material to OCTANE SOLUTION’s ability to provide the Services. Whilst OCTANE SOLUTION will make all reasonable efforts to work around any failure on the part of the Customer to perform its obligations, OCTANE SOLUTION may revise the Consulting Order Form and or Charges, make any reasonable Additional Charges or suspend the Consulting Order Form at its option, if the Customer’s failure to perform impacts on OCTANE SOLUTION’s ability to commence or proceed with the Services.

5.5 If the Customer discloses any personal information (as defined in the Privacy Act 1988) to OCTANE SOLUTION, the Customer warrants that it has complied with its obligations under the Privacy Act and that OCTANE SOLUTION is entitled to collect and use the personal information to the extent necessary to provide the Services without having to provide any disclosures or notifications to the individual concerned.

6. Charges

6.1 Other than where the Charges are stated as fixed in the Consulting Order Form, the Customer will be invoiced for the actual time spent by OCTANE SOLUTION in delivering the Services.For the avoidance of doubt, time spent by OCTANE SOLUTION in delivering the Services may also include charges for Subcontractors’ time and fees in providing their services to OCTANE SOLUTION relating to the Services under this Agreement.

6.2 Unless otherwise stated in the Consulting Order Form, OCTANE SOLUTION will invoice the Customer after the end of each calendar month for the Services performed in that month.

6.3 The Customer will pay the Charges within seven (7) days of receiving an invoice from OCTANE SOLUTION.

6.4 The Customer will reimburse OCTANE SOLUTION for all reasonable expenses incurred in performing the Services including but not limited to travel and living expenses. Upon the Customer’s request OCTANE SOLUTION will provide such supporting expense documentation and receipts as are kept in accordance with OCTANE SOLUTION’s internal expense reimbursement policy.

6.5 If the Customer disputes the whole or any portion of the amount claimed in an invoice submitted by OCTANE SOLUTION, the Customer must pay the portion of the amount stated in the invoice which is not in dispute and must notify OCTANE SOLUTION in writing (within seven days of receipt of the invoice) of the amount in dispute and the reasons for disputing that amount. If it is resolved that some or all of the amount in dispute was properly payable, then the Customer must pay the amount finally resolved together with interest on that amount in accordance with clause 6.8 such interest to be calculated from the due date for payment of the invoice.

6.6 The Charges are exclusive of taxes, duties and charges imposed or leviedin Australia or overseas in connection with the Services. The Customer is liable for all such taxes and any new taxes, duties or charges imposed after the date of the Consulting Order Form.

6.7 Without limiting clause 6.6, to the extent that any supply under or in connection with this Agreement constitutes a taxable supply as defined in A New Tax System (Goods and Services Tax) Act 1999, as amended from time to time, (the GST law), the consideration payable will automatically be increased to include an additional amount on account of goods and services ax (GST). That amount will be the product of the value of the consideration for the supply and the prevailing GST rate.

6.8 Overdue payments will bear interest at the lesser of one percent (1%) per month or

the maximum rate allowed under applicable law. Despite charging interest, if Charges are not paid within thirty (30) days OCTANE SOLUTION may, at its sole discretion suspend or terminate the Services and or terminate the Agreement by notice to the Customer.

7. Confidentiality

7.1 The Recipient must only use the Discloser’s Confidential Information for the purpose for which it was supplied.

7.2 The Parties will protect each other’s Confidential Information with at least the same degree of care and confidentiality that it uses to protect its own information that it does not wish disclosed to the public but not less than a reasonable standard of care.

7.3 The Recipient must not, without the prior written approval of the Discloser, disclose the Discloser's Confidential Information.

7.4 The Recipient is not in breach of clause 7.1 in circumstances where it is legally compelled to disclose the Discloser's Confidential Information provided that the Recipient:

1. notifies the Discloser of the requirement prior to disclosure;

2. makes diligent efforts to avoid and or limit the disclosure;

3. seeks confidential treatment of the information so required to be disclosed; and

4. complies with any applicable protection order or equivalent.

7.5 Subject to clause 7.7, the Recipient must only disclose the Confidential Information to those employees, agents and any sub-consultants who are engaged in the performance of the Agreement or otherwise have a need to use or access the Confidential Information.

7.6 Each Party must take all reasonable steps to ensure that its employees, agents, and any sub-consultants engaged for the purposes of the Agreement, do not make public or disclose the Discloser's Confidential Information.

7.7 OCTANE SOLUTION may at any time require the Customer to arrange for its employees, agents or sub-consultants engaged in the performance of the Agreement to execute a suitable confidentiality deed. The Customer must arrange for all such deeds to be executed within the timeframe reasonably proposed by OCTANE SOLUTION.

7.8 Notwithstanding any other provision of this clause, either party may disclose the terms of the Agreement (other than Confidential Information of a technical nature) to its related companies, solicitors, auditors, insurers and accountants

7.9 The Recipient will have no confidentiality obligation with regard to information to the extent it is or becomes generally known to the public without any fault on the part of the Recipient.

7.10 The Recipient must return or destroy all Confidential Information as and when directed by the Discloser provided that OCTANE SOLUTION may retain a copy of any Confidential Information provided by the Customer in order to keep appropriate records and an audit trail of the Services performed.

7.11 It will not be a breach of clause 7 if OCTANE SOLUTION discloses to third parties that OCTANE S OLUTION is providing Services to the Customer. 7.12This clause survives the termination of the Agreement.

8. Ownership of Deliverables

8.1 The Customer acknowledges that, unless and to the extent stipulated to the contrary in the Consulting Order Form, OCTANE SOLUTION retains all Intellectual Property Rights associated with any Deliverables.

8.2 If and to the extent it is provided in the Consulting Order Form that title in the Deliverables is to vest in the Customer, then title only vests in the Customer when the Customer has paid the Charges due under the Consulting Order Form in full. The Customer acknowledges that vesting of title in any Deliverables does not affect the Intellectual Property Rights in any pre-existing material (including but not limited to software, documentation and data) which is incorporated into the Deliverables, or any enhancements to this material which remains the property of OCTANE SOLUTION.

9. Intellectual property rights

9.1 Subject to clauses 9.2, 9.4 and 9.5, OCTANE SOLUTION will indemnify the Customer against liability under any final judgment in proceedings brought by a third party against the Customer which determine that the Customer's use of any Deliverables constitutes an infringement of Intellectual Property Rights.

9.2 OCTANE SOLUTION will not indemnify the Customer unless the Customer:

1. notifies OCTANE SOLUTION in writing as soon as practicable of any infringement, suspected infringement or alleged infringement;

2. gives OCTANE SOLUTION the option to conduct the defense of such a claim, including negotiations for settlement or compromise prior to the institution of legal proceedings;

3. provides OCTANE SOLUTION with reasonable assistance in conducting the defense of such a claim;

4. permits OCTANE SOLUTION to modify, alter or substitute the infringing part of the Deliverables, at its own expense, to render the Deliverables non-infringing; and

5. authorises OCTANE SOLUTION to procure for the Customer the authority to continue the use and possession of the Deliverables.

9.3 If CFO Group cannot reasonably render the Deliverables non-infringing or obtain authorisation for the Customer to continue using the Deliverables due to the Customer’s infringement of any license, or other application related to the Deliverables or Octane’s engagement whatsoever, Octane may terminate the Agreement, take back the affected Deliverables and refund the Charges paid for the affected Deliverables, less a reasonable charge for use to the date of termination.

9.4 OCTANE SOLUTION will not indemnify the Customer if such infringement, suspected infringement or alleged infringement arises from:

1. the creation of Deliverables in accordance with the Customer’s specifications or requirements;

2. use of the Deliverables in combination by any means and in any form with other goods or services not provided by OCTANE SOLUTION;

3. use of the Deliverables in a manner or for a purpose not reasonably contemplated or not authorised by OCTANE SOLUTION;

4. modification or alteration of the Deliverables other than by OCTANE SOLUTION; or

5. any transaction entered into by e Customer relating to the Deliverables without OCTANE SOLUTION's prior consent in writing.

9.5 In the event that proceedings are brought or threatened by a third party against the Customer alleging that the Customer's use of the Deliverables constitutes an infringement of Intellectual Property Rights, OCTANE SOLUTION may at its option and at its own expense conduct the defense of such proceedings.9.6The Customer must provide all necessary co-operation, information and assistance to OCTANE SOLUTION in the conduct of the defense of such proceedings.

9.6 The Customer must indemnify OCTANE SOLUTION against any loss, costs, expenses, demands or liability, whether direct or indirect, arising out of a claim by a third party alleging such infringement if:

the claim arises from an event specified in clause 9.3; or

the ability of OCTANE SOLUTION to defend the claim has been prejudiced by the failure of the Customer to comply with the provisions of clauses9.2 or 9.5.

9.7 This clause 9 states the entire liability and obligations of OCTANE SOLUTION and the exclusive remedy of the Customer, with respect to any actual or alleged infringement of Intellectual Property Rights arising out of or in connection with any Services.

10. Employees and contractors

10.1 Neither Party will hire for employment, either directly or indirectly, any person who is directly involved in the provision of the Services, while the Services are being provided or for a period of six months after the later of Acceptance or completion of the Services. If a Party fails to comply with this provision that Party agrees to pay the other:

1. where the person charges out billable time, an amount equal to six (6) months consulting fees at that person’s current daily rate; or

2. where that person does not charge out billable time, an amount equal to six (6) months of the total remuneration of the person,

10.2 A Party must promptly advise the other Party if a person who is employed or contracted by the other Party seeks to be employed or contracted by the first mentioned Party whilst still employed by the other Party.

11. Implied terms and liability

11.1 Subject to clause11.2, any term, condition or warranty which would otherwise be implied in the Agreement is hereby excluded.

11.2 Where legislation implies in the Agreement any term, condition or warranty, and that legislation avoids or prohibits provisions in a contract excluding or modifying the application of or exercise of or liability under such term, condition or warranty, then the term, condition or warranty is deemed to be included in the Agreement.

11.3 If OCTANE SOLUTION is liable to the Customer:

1. under clause 11.2 for breach of a non-excludable implied term, condition or warranty; or

2. under the Agreement and the Customer notifies OCTANE SOLUTION of its claim within ninety (90) days of the claim accruing;

   then:

3. to the extent permitted by law, the liability of OCTANE SOLUTION is limited, at the option of OCTANE SOLUTION, to one or more of the following:

A. if the breach relates to goods:

1. the replacement of the goods or the supply of equivalent goods;

2. the repair of such goods;

3. the payment of the cost of replacing the goods or of acquiring equivalent goods; or

4. the payment of the cost of having the goods repaired; and

B. if the breach relates to services:

1. the supplying of the services again; or

2. the payment of the cost of having the services supplied again.

12. Limitation of Liability

12.1 Except as otherwise specifically provided in the Agreement and to the extent permitted by applicable law:

1. OCTANE SOLUTION will not be liable for incidental, consequential, or special damages including, without limitation, lost data, revenues, or profits howsoever arising (including from negligence); and

2. if despite clause 11.3, OCTANE SOLUTION is otherwise liable to the Customer, OCTANE SOLUTION’s liability is limited to a maximum amount equal to the Charges paid by the Customer under the Consulting Order Form to which the claim relates.

13. Termination

13.1    The Agreement will remain in effect until terminated by a Party under clause 13.2 or 13.3.  For the avoidance of doubt, if the Agreement is terminated under clause 13.3, the  Consulting  Order  Form  terminates  notwithstanding  that  the  Services  may  not have been completed.   

13.2    Either  Party  may  terminate  the  Agreement  by  giving  sixty  (60)  days  notice  to  the other Party, provided that termination will not take effect until all Services have been completed  and  all  amounts  payable  under  the  Consulting  Order  Form  have  been paid to OCTANE SOLUTION. 

13.3    Without  limiting  the  generality  of  any  other  clause  in  the  Agreement,  a  Party  may terminate the Agreement immediately by notice in writing to the other Party if: 

1. the other Party is in breach of any term of the Agreement and such breach is not remedied within thirty (30) days of a notice of the breach; 

2. a  Party  becomes,  threatens  or  resolves  to  become or  is  in  jeopardy  of becoming  subject  to  any  form  of  insolvency  administration  or  is  unable  to pay its debts as and when they become due; or 

3. a Party, being a partnership, dissolves, threatens or resolves to dissolve or is in jeopardy of dissolving. 

13.4        If notice is given to the Customer pursuant to clause 13.3, OCTANE SOLUTION may, in addition to terminating the Agreement: 

1. repossess any  of  its  property  in  the  possession,  custody  or  control  of  the Customer; 

2. retain any money paid; 

3. charge  a  reasonable  sum  for  work  performed  in  respect  of  which work no sum has been previously charged; 

4. be   regarded   as   discharged   from   any   further   obligations   under   the Agreement; and 

5. pursue any additional or alternative remedies provided by law.  

This clause survives the termination of this Agreement. 

13.5    OCTANE SOLUTION may terminate this Agreement immediately by notice in writing if the Customer is  late  in  paying  any  amount  due  under  this  Agreement,  and  such  breach  is  not remedied within 7 days of notice from OCTANE SOLUTION. 

 

14. Force Majeure

14.1    Neither Party is liable for any delay or failure to perform its obligations (other than to pay money) under the Agreement if such delay is due to Force Majeure. 

14.2    If a delay or failure of a Party to perform its obligations is caused or anticipated due to Force Majeure, the performance of that Party's obligations will be suspended. 

14.3    If  a  delay  or  failure  by  a  Party  to  perform  its  obligations  due  to  Force  Majeure exceeds sixty (60) days, either Party may immediately terminate the Agreement on providing notice in writing to the other Party. 

14.4    If the Agreement is terminated pursuant to clause 14.3, OCTANE SOLUTION must refund moneys previously paid by the Customer under the Agreement for Services not provided by OCTANE SOLUTION. 

15. Disputes

15.1    If  a  dispute  arises  between  the  Parties  in  connection  with  this  Agreement,  the Parties  agree  to  use  their  reasonable  endeavors  to  resolve  the  Dispute  by discussions  in  good  faith  between  senior  management  of  the  Parties.    Any difference or dispute does not relieve the Customer of its obligation to pay Charges when they are due for payment. 

15.2    If the parties are unable to resolve the dispute in accordance with clause 15.1above, then the dispute shall be referred to Expert Determination by written request by either party served on the other party. If  the  parties  cannot  agree  on  whom  the  independent  expert  should  be  within  10 business  days,  either  party  may  promptly  request  the  Institute  of  Arbitrators  and Mediators Australia (IAMA) to appoint an independent expert. The  parties  are  to  meet  with  the  independent  expert  and  agree  the  process  of expert determination within 10 business days. The  parties  must  assist  the  independent  expert  throughout  the Expert Determination process in good faith at all times. The  independent  expert  must  be  instructed  to  complete  the  Expert  Determination process  within no  more  than  15  Business  Days  after  the  date  of  being  appointed  by either IAMA or the parties. The  independent  expert  must  act  as  an  expert  and  not  an  arbitrator  and  its  written determination  shall  be  final  and  binding  upon  the  parties  in the absence of manifest error. 

16. Entire agreement

This Agreement constitutes the entire agreement between the Parties and supersedes all prior representations, agreements, statements and understandings, whether verbal or in writing.

17. Assignment and novation

The benefit of this Agreement cannot be assigned by either Party without the prior written consent of the other Party.

For the avoidance of doubt. OCTANE SOLUTION may sub-contract the Services or Deliverables, in whole or in part, to its authorised Subcontractors, and such sub-contract will not be considered assignment.

18. Waiver

18.1 No right under this Agreement will be deemed to be waived except by notice in writing signed by each Party.

18.2 A waiver made by a Party under clause 18.1 will not prejudice that Party’s rights in respect of any subsequent breach of the Agreement by the Customer.

18.3 Subject to clause 18.1, any failure by a Party to enforce any clause of this Agreement, or any forbearance, delay or indulgence granted by that Party to the other, will not be construed as a waiver of any rights under this Agreement.

19. Variation

19.1 This Agreement can only be varied by an agreement in writing signed by both Parties provided that:

1. only  the  OCTANE SOLUTION  Representative  can  sign  a  variation  to  the  details  in  the Consulting Order Form; and 

2. variations  to  these  Standard  Terms  and  Conditions  must  be  signed  by  a duly authorised officer of OCTANE SOLUTION. 

19.2 If either Party proposes to vary the Agreement, the proposing Party must submit a copy of the proposed variations to the other Party. The receiving Party will advise the proposing Party within four (4) normal working days of receipt of the variations that it accepts or rejects the variations.

19.3 If the receiving Party accepts the variations, the Parties must sign a variation to the Standard Terms and Conditions or the Consulting Order Form (as the case may be) in accordance with clause 19.1 incorporating the accepted variations.

19.4 A variation will not be effective until the Parties agree in writing as to:

1. the effect of the variation, if any, upon the Charges; and 

2. the  impact  of  the  variation  on  the  obligations  of  either  Party  under  the Agreement.  

The  variations  will  only  take  effect  when  a  variation  is  signed  in  accordance  with clause 19.1.   

19.5 If the receiving Party rejects the proposed variations or a variation is not signed, each Party will perform the Agreement in accordance with the unvaried terms.

20. Severability

20.1 If any provision of the Agreement is held invalid, unenforceable or illegal for any reason, the Agreement, remains otherwise in full force apart from such provisions which are deemed deleted.

21. OCTANE SOLUTION's rights

21.1 Any express statement of the rights of OCTANE SOLUTION under this Agreement is without prejudice to any other right of OCTANE SOLUTION expressly stated in this Agreement or existing at law.

22. Survival of agreement

22.1 Subject to any provision to the contrary, this Agreement will enure to the benefit of and be binding upon the Parties and their successors, trustees, permitted assigns or receivers but does not enure to the benefit of any other persons.

22.2 The covenants, conditions and provisions of this Agreement which are capable of having effect after the termination of the Agreement remain in full force and effect following the termination of the Agreement.

23. General

23.1 This Agreement shall be governed by and construed under the laws of New South Wales, Australia and the parties accept the exclusive jurisdiction of the New South Wales Courts.

23.2 The Customer acknowledges that the Customer is not relying upon any representations or statements as to the subject matter of this Agreement except as specifically set out in writing.

23.3 All notices shall be in writing and shall be by personal delivery, facsimile or first class post, postage prepaid. Notices to the Customer shall be sent to its address in the Consulting Order Form to the attention of the named Customer contact. Notices to OCTANE SOLUTION shall be sent to its address in the Consulting Order Form attention: Company Secretary. Notices areeffective on delivery in the case of personal delivery, on receipt in the case of facsimileif received on a business day or otherwise at the commencement of the first business day following transmissionand five (5) days after mailing in the case of post.

23.4 This Agreement may be executed in counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement, provided that this Agreement shall be of no force and effect until the counterparts are exchanged.