Last updated 15 January 2023
The following terms and conditions ("Terms") apply to all consultancy services and any goods provided by Kongo Group Pty Ltd ACN 150 205 324 of Level 3, Cnr Carrington Rd and Thurston St, Box Hill, Victoria, Australia, 3128 (“Kongo Group”) to the CUSTOMER referred to in a Quotation or Project Schedule issued by Kongo Group or for whom Kongo Group provides DELIVERABLES after the date these Terms are first accepted by the Customer.
1. Deliverables
1.1. Kongo Group will provide consulting services to the Customer as agreed in writing by Kongo Group and the Customer from time to time and contained in a written Project Schedule or as otherwise as outlined in a Quotation (the "Services"). Kongo Group may also supply the Customer with goods or services (including hardware) sourced by Kongo Group from third parties, as ordered by Customer and agreed by Kongo Group from time to time and specified in a Project Schedule (“Products”). The term "Deliverables" refers collectively to the Products and the Services (including the Service outcomes such as software, hosted integrations, websites and other digital platforms, creative artistic works, strategies, analytics and reports and other work products).
1.2. The agreement between Kongo Group and the Customer shall comprise the document titled “Agreement”, these Terms, any written Quotation and the Project Schedule and the parties agree that those documents set out the entire agreement between Kongo Group and the Customer in relation to the supply by Kongo Group of Deliverables. They supersede any document that the Customer may issue (such as a purchase order), and all prior communications, agreements, negotiations and representations by the parties.
2. Quotations and Ordering & Project Schedule
2.1. Kongo Group may issue a quotation in respect of any Deliverable proposed to be provided under these Terms (“Quotation”). Unless otherwise withdrawn by Kongo Group, the Quotation remains open for acceptance for 60 days from the date of issue (or such other time as specified in the quotation). The Customer can accept a Quotation by digitally signing a copy of it and sending to Kongo Group or by making the required engagement deposit payment for the project quoted. Unless otherwise specified a fifty per cent upfront fee will be payable upon execution of the Project Schedule or acceptance of the Quotation, and the remaining fifty per cent will be payable upon acceptance of all Deliverables.
2.2. Any Quotation issued by Kongo Group is based on the information that was provided to Kongo Group at the time of Quotation. If that information is later found to be inaccurate Kongo Group may charge an additional amount calculated on a time and materials basis at Kongo Group's standard scale of charges (as notified to the Customer from time to time).
2.3 Kongo Group will issue a scope of work or schedule (“Project Schedule”) setting out the project details, including:
(a) the nature of the Deliverables to be provided pursuant to the Project Schedule;
(b) any specifications for the Deliverables;
(c) a project plan for the preparation of those specifications and/or the Deliverables;
(d) the fee payable to Kongo Group for the Deliverables (if the Project Schedule states that the price for the Deliverables is fixed) or a method for calculating that price, and the payment schedule for the Deliverables;
(e) the Facilities to be made available by the Customer (including any Means of Access required and any Restrictions on Access);
(f) such other items as Kongo Group considers relevant for that Project Schedule; and
(g) the deposit amount (if any) to be paid in advance on account of the Deliverables.
Kongo Group will begin providing the Deliverables in accordance with the Project Schedule upon acceptance of the Quotation and payment of any deposit referred to in paragraph (g).
2.4 Kongo Group reserves the right to vary the Quotation and the Project Schedule as reasonably required if for any reason there is a variation to the Deliverables. The Customer shall be deemed to have accepted the variations unless it notifies Kongo Group in writing within five days of receipt of the varied Quotation by an authorised representative. If the Customer does not accept the variations the parties will use reasonable endeavours to resolve the dispute on a commercial basis.
3. Reporting, Means of Access and Facilities
3.1. The Customer shall make an employee or other representative (as specified in the Project Schedule) available to meet with Kongo Group when Kongo Group reasonably requires it for the purposes of discussing the status of the Deliverables. Kongo Group and Customer shall meet at least fortnightly to discuss the status of the Deliverables.
3.2. Kongo Group may provide the Services remotely and is not required to attend the Customer's premises (“Means of Access”). The Customer authorises Kongo Group to access the Customer's computing facilities referred to in the Project Schedule (the "Facilities") using the Means of Access and subject to any Restrictions on Access set out in the Project Schedule, for the purposes of providing the Deliverables. Kongo Group agrees to comply with all relevant policies and procedures upon which it is put on written notice, including the Customer’s Information and Security Policy. Kongo Group will not use the Means of Access to access the Facilities for any purpose other than in accordance with these Terms. However, Kongo Group may gain remote access to the Facilities for lawful purposes using any publicly available means (such as the World Wide Web) which do not require special authorisation.
3.3. If stated in a Project Schedule or project plan, or if Kongo Group requests it, Customer will provide Kongo Group with reasonable assistance and facilities free of charge (including the Means of Access and any other Items referred to in the Project Schedule or a project plan, office facilities, and liaison with the necessary officers and employees of the Customer) in order to assist Kongo Group to provide the Deliverables.
4. Consulting Rates, and Other Expenses
4.1. Unless the price for the Deliverables is stated in a Project Schedule to be fixed, Kongo Group is entitled to charge the Customer for Deliverables on a time and materials basis at Kongo Group's standard scale of charges from time to time (provided Customer is on notice of the charges). The Customer will also pay Kongo Group any licensing or other fee that Kongo Group is required to pay to obtain or maintain a licence for the Customer for any third party software (including design, one or more websites, or other creative artistic work) together with Kongo Group's own charge that it levies for handling and/or obtaining any relevant sub-licences upon such pricing being agreed in writing between the Parties.
4.2. If Kongo Group arrange third party suppliers to provide goods or services to the Customer that are ancillary to the Deliverables (for instance, web hosting, or third party printing), Kongo Group are doing so as an agent of the Customer. The Customer is primarily responsible for any ongoing fees or charges and other responsibilities (such as account management) direct to those suppliers, and the Customer will be bound by their terms and conditions. Kongo Group is not authorised to enter any binding agreement on behalf of the Customer without its prior written consent.
5. Invoicing and Payment
5.1. Kongo Group may invoice the Customer on an interim basis for progress payments, including for such expenses as the Customer is required to reimburse Kongo Group. Kongo Group's invoices will contain such information and detail as the Customer reasonably requires to permit the Customer to account for the Deliverables.
5.2. Unless otherwise expressly stated, all amounts payable are expressed to be exclusive of GST. If GST is payable on a taxable supply, the amount payable for that taxable supply will be the amount expressed plus GST. Kongo Group will provide the Customer with a Tax Invoice in a form that complies with the law relating to the imposition of GST.
5.3. Kongo Group's invoices are payable within 30 days of the invoice date, regardless of whether or not the Customer has received payment from any other party in respect of any Deliverables. Payment is to be made by direct debit to an account nominated in writing by Kongo Group (and the Customer must inform Kongo Group in writing when it has done so). If the Customer does not pay an undisputed invoice by that time, then without prejudice to Kongo Group's rights: (a) interest is also payable on the outstanding amount, to be calculated at the prescribed rate under the Victorian Penalty Interest Rates Act 1983; and (b) by written notice to the Customer, Kongo Group can suspend or terminate any licence granted to the Customer to use the Deliverable in respect of which payment is outstanding, and may recover or remove from the Facilities any Deliverables for which payment has not been made, including without limitation by using the Means of Access described in clause 3.2.
5.4. If the Customer breaches any material obligation under this document (including clause 5.3) then without prejudice to Kongo Group's rights, Kongo Group may recover from the Customer all reasonable expenses (including legal costs) incurred by Kongo Group in the enforcement of that obligation provided Customer is given reasonable written notice of any breach and any proposed charges.
6. Confidentiality
Each party acknowledges the confidentiality of the other party's confidential information. Neither party will gain a right or interest in the other party's confidential information, other than for the purposes contemplated by these Terms. Each party must keep all of the other party's confidential information confidential, and only use it for the purposes of fulfilling its obligations under these Terms. However this obligation will not apply to information which: (a) was in the public domain when it was provided to a party, or later enters the public domain, through no fault of the party; or (b) the party is obliged by law to disclose, provided that it has first advised the other party of this obligation.
7. Intellectual Property
7.1. Except to the extent agreed in writing by Kongo Group, all intellectual property rights relating to any software or other Deliverables provided to the Customer by or on behalf of Kongo Group pursuant to these Terms (the "Intellectual Property") remains the property of the Customer, or where applicable the Customer's licensors.
8. Warranties
8.1. Kongo Group warrants to the Customer that Kongo Group will not infringe any third party’s intellectual property rights in the supply of the Deliverables, or use of the Deliverables by the Customer or authorised third parties in accordance with these Terms or grant of any licences referred to in these Terms. If the Customer becomes aware of a breach or potential breach of this warranty the Customer must:
(a) promptly inform Kongo Group in writing, giving full particulars of the infringement or alleged infringement;
(b) give Kongo Group the option to conduct the defence of that claim, including negotiations for settlement or compromise prior to or after the institution of legal proceedings, and give Kongo Group reasonable assistance in conducting the defence of that claim;
(c) permit Kongo Group to modify the Deliverable or replace components or parts of components, to render the Deliverable non-infringing; and
(d) authorise Kongo Group (or its licensors) to obtain for the Customer's benefit the authority to continue using the Deliverable.
If an independent tribunal of fact or law determines, or Kongo Group agrees with the other parties to the dispute that an infringement of third party intellectual property rights has occurred, Kongo Group will at its option:
(e) take reasonable steps to obtain for the Customer the right to continue using the Deliverable; or
(f) modify the Deliverable in order to avoid continuing infringement.
If the solutions in either of earlier two paragraphs (e) or (f) cannot be achieved using reasonable commercial efforts, Kongo Group may terminate the licence under these Terms (or the relevant part of it) by written notice to the Customer and refund the Customer for any Deliverables that cannot be used or otherwise delivered under the Agreement.. However Kongo Group has no liability under this clause 8.1 with respect to any claim based upon:
(g) the combination of the Deliverable with other products or software, design, one or more websites, or other creative artistic work that Kongo Group did not supply to the Customer for use with the Deliverable or otherwise sanction as part of the Project Schedule specification;
(h) any addition to or modification to the Deliverable that Kongo Group did not create or supply;
(i) use of a superseded release or version of a Deliverable provided Customer was directed to adopt the subsequent release or version of the Deliverable and failed to do so within a reasonable time-frame;
(j) any use of the Deliverable that is not in accordance with its documentation, these Terms or Kongo Group's written instructions; or
(k) any aspect of the or any third party's systems or software, design, one or more websites, or other creative artistic work.
This clause 8.1 sets out all of Kongo Group's obligations, and the Customer's only remedies in respect of any claim that the Customer's authorised use of a Deliverable infringes the intellectual property rights of any party.
8.2. Kongo Group warrants that any services that it provides as part of the Services will confirm in all material respects with the agreed specification, will be provided with a reasonable level of care and skill, using appropriately skilled personnel and within the agreed time-frame. In relation to Products, the benefit of any warranties given by their manufacturers or licensors will be passed to the Customer unless otherwise agreed.
8.3. The Customer must ensure that the written specifications for any Deliverable (whether in the Project Schedule or prepared pursuant to a project plan) meets with the Customer's requirements prior to the work commencing under this document. Once Kongo Group has provided a Deliverable to the Customer, the Customer must promptly test the Deliverable for compliance with the Project Schedule. The Customer must submit all complaints, claims, or notifications of Deliverables that do not comply with the Project Schedule to Kongo Group in writing within 14 days of the date of Kongo Group's invoice for the Deliverable. Otherwise, the Customer is deemed to have accepted the Deliverable. On no account shall the Customer have any claim against Kongo Group on the basis that the Deliverable provided in accordance with its specifications does not meet the Customer's or any other person's requirements.
8.4 The Customer must provide any information and materials required to enable Kongo Group to perform the Services (“Customer Materials”) as outlined in the agreed specification. The Customer grants Kongo Group a non-exclusive licence to use the Customer Materials as reasonably required by Kongo Group to perform the Services. The Customer agrees to defend, indemnify and hold Kongo Group harmless from any and all losses that may be incurred by Kongo Group as a result of any claim against Kongo Group which arises out of Kongo Group’s use of the Customer Materials other than to the extent that such loss arises from the gross negligence or wilful misconduct of Kongo Group or use other than in accordance with the Customers’ reasonable instructions.
9. Liability
9.1. None of the Deliverables provided pursuant to these Terms or a Project Schedule are designed or intended to be fault-tolerant or to be used where their failure or malfunction could lead to death, personal injury, or economic, physical or environmental damage ("Risk Activities"). Kongo Group specifically disclaims any express or implied warranty of fitness of any of the Deliverables for Risk Activities, and the Customer will indemnify Kongo Group for any losses arising from the use of any Deliverable by any person for Risk Activities.
9.2. Except for express undertakings to indemnify and any warranties set out in these Terms, to the extent permitted by law, Kongo Group expressly excludes all conditions and warranties whether express or implied.
9.3. Despite any other provision in these Terms or a Project Schedule, in no event will either Party be liable to the other party or any third party for any indirect, punitive, special, incidental or consequential damage in connection with or arising out of these Terms (including for loss of profits, use, data, or economic advantage), regardless of how it arises. The Customer will indemnify Kongo Group from and against any claim by any party claiming any such damage against Kongo Group.
9.4. To the extent permitted by law, Kongo Group's cumulative liability for breach of any guarantees, conditions or warranties (whether expressed in these Terms or which apply by operation of any law) and the Customer's only remedy in relation to such a breach is limited to:
(a) in the case of the Services, at Kongo Group's option but in consultation with the Customer: (i) supplying the Services again; or (ii) paying the cost of having the Services supplied again; and
(b) in the case of the Products, at Kongo Group’s option but in consultation with the Customer : (i) replacing the Products or supplying equivalent Products; (ii) repairing the Products; (iii) payment of the cost of replacing the Products or of acquiring equivalent Products; or (iv) payment of the cost of having the Products repaired.
9.5. Subject to clauses 9.3 and 9.4 and to the extent permitted by law, in no event will Kongo Group's total aggregate liability in respect of all claims arising under or pursuant to these Terms exceed the amount actually paid to Kongo Group under these Terms during the previous 12 months, regardless of whether such claims arise out of a single event or a series of events.
9.6. The Customer is solely responsible for the proper backup and protection of all of its hardware, software, websites, data and systems (including any Deliverables once installed), as well as the implementation and maintenance of firewalls and security measures such as, for example, appropriate virus control.
10. Agreement Non-exclusive
The Customer acknowledges that Kongo Group is providing Deliverables to the Customer on a non-exclusive basis and that Kongo Group may provide services and products of the same or a similar nature as the Deliverables to any other party (provided that in doing so it does not breach clauses 6 and 7).
11. Term and Termination
11.1. Either party may terminate the agreement under a Project Schedule or these Terms generally for any reason on 30-days written notice to the other party.
11.2. Either party may terminate the agreement under a Project Schedule or these Terms generally, if the other party:
(a) breaches a material obligation under these Terms and does not remedy that breach within 14 days of written notice of that breach from the other party; or
(b) is or is deemed to be insolvent, or ceases to conduct it business in the ordinary way (except if it has assigned its rights and obligations under these Terms in accordance with these Terms prior to that occurring), or an administrator, receiver, receiver and manager, official manager, liquidator, provisional liquidator, or similar is appointed in respect of the other party or any of its assets.
11.3. If the Customer terminates the agreement pursuant to clause 11.2(a) or 11.2(b) the Customer is entitled to a refund only on Deliverables paid for, but not yet provided.
11.4. On termination of an agreement under a Project Schedule or these Terms, Kongo Group is entitled to invoice the Customer for all Deliverables provided or delivered but not yet invoiced, including Products ordered for the Customer but not yet delivered and invoiced (unless the Products can be returned to their supplier for a refund without cost or penalty). If any undisputed amount payable under these Terms remains unpaid 30 days after termination then, without prejudice to Kongo Group's other rights, all licences granted to the Customer for which payment has not been received shall automatically terminate, and Kongo Group may retake possession of any unpaid Products and disable or remove any such unlicensed software, design, one or more websites, or other creative artistic work (including by remote means).
12. Survival of Terms
The Customer's obligations (including any obligations to indemnify) under clauses 7 (Intellectual Property) and 9 (Liability), and each party's obligations under clause 6 (Confidentiality) and this clause 12 survive the termination of any agreement under these Terms for any reason.
13. General Provisions
13.1. These Terms are governed by and will be interpreted according to the laws of Victoria, and the parties consent and submit to the jurisdiction of the Victorian courts.
13.2. If any provision of these Terms proves to be illegal or unenforceable for any reason, that provision is deemed omitted without affecting the remaining provisions and the remaining provisions of these Terms shall continue in full force and effect.
13.3. Any notice required or contemplated by these Terms is deemed to have been properly given to a party if it is in writing, properly addressed and delivered personally, or mailed postage prepared addressed or by facsimile to the party at its addresses set out in these Terms, or such other address nominated by a party in writing.
13.4. The Customer may not assign any of its rights or obligations under these Terms without Kongo Group's prior written consent.
13.5. Kongo Group may arrange for subcontractors to perform any of its obligations under these Terms or a Project Schedule with the Customer’s prior written consent. In the event that subcontractors are engaged, Kongo Group will remain liable for any actions, omissions or failures of the subcontractor.
13.6. Kongo Group will not be liable to the Customer or to any third party for any non-performance or delay in the performance of its obligations under these Terms, if events or conditions beyond its reasonable control cause the non-performance or delay. In no event will this provision affect Customer's obligation to make payments to Kongo Group under these Terms except in respect of Deliverables that cannot be delivered, until they can be delivered.
13.7. Either Party’s failure, delay or neglect to enforce a term of these Terms is not to be taken as a waiver of that term or Kongo Group's rights, or a consent to, a waiver of, or any reason or justification for any different, continuing, or subsequent breach.
13.8. These Terms may only be amended or varied by written agreement of the parties.
13.9 A party is not liable for any failure or delay in performance of an obligation under these Terms, to the extent that the failure or delay is caused by circumstances outside that party's direct control and for the period that those circumstances continue, if that party immediately notifies the other party and uses reasonable endeavours to remedy the failure or delay.