Terms & Conditions

Terms and Conditions

1. Definitions

• "Company": GRO3
• "Customer": The entity or individual receiving the services.
• "Services": The services provided by the Company as described in the Agreement.
• "Third Party Contractors": Any external contractors engaged by the Company to perform services.
• "Agreement": The contractual agreement between the Company and the Customer.

2. Interpretation

• The headings in this Agreement are for convenience only and shall not affect the interpretation of any provision.
• References to any statute or regulation include amendments or re-enactments.

3. Agreement Composition and Order of Precedence

• This Agreement comprises these Terms and Conditions, any applicable Service Level Agreement (SLA) as included in the Statement of Work (SOW), and any other documents expressly incorporated by reference.
• In the event of any conflict, the order of precedence shall be: (a) SLA, (b) these Terms and Conditions, (c) other incorporated documents.

4. Services

4.1. Supply of Services

• Subject to this Agreement, GRO3 shall supply the Services to Customer from the Service Start Date for the Term.
• If the Services are to be delivered to several Customer Premises listed in a Statement of Work, the Service Start Date for each Customer Premises will be specified in the relevant Statement of Work.
• GRO3 will ensure that the Services are provided at the relevant agreed Service Levels (if any) and otherwise in accordance with the terms of this Agreement.

4.2. Service Levels and Liability

• To the extent permitted by law, GRO3 will not be liable to Customer if GRO3's failure to achieve the relevant Service Level is caused directly by:
  • any wrongful act or omission of Customer,
  • any third party (not employed, engaged, or subcontracted by GRO3 in the provision of the Services),
  • any Other Supplier, or
  • by reason of a Force Majeure Event.

4.3. Use of Third Party Contractors

• GRO3 may engage third party contractors to perform part but not all of the Services, provided each of those persons is suitably qualified, skilled, experienced, and capable of performing the work or services GRO3 engages them to perform.
• GRO3 remains liable for the performance of their obligations as if GRO3 had performed such obligations itself.

4.4. General Service Provisions

• GRO3 shall supply the Services at the agreed service levels as specified in the SLA.
• Any variations to the Services must be agreed upon in writing by both parties.
• The Customer shall not use the Services for any unlawful purpose.
• The Customer shall indemnify GRO3 against any loss or damage arising from the Customer's misuse of the Services.
• The Customer shall cooperate with any Third Party Contractors engaged by GRO3.
• The Customer shall provide all necessary information and assistance to GRO3 to enable the performance of the Services.
• GRO3 shall perform the Services with due care and skill.
• The Customer shall promptly report any faults or issues with the Services to GRO3.

5. Variations to Services

5.1. Request for Variation

• Either party can request in writing a variation to the Services, including any increase or reduction of any part of a Service.

5.2. Response to Variation Request

• The recipient of a request under clause 5.1 must respond within 10 Business Days, either accepting (with amendments or otherwise) or rejecting the request.
• GRO3's request or response to a request by the Customer must set out the revised scope and, if any, changes to the Service Fees, including any applicable early third-party early termination fees.

5.3. Agreement to Proceed with Variation

• If parties agree to proceed with the variation based on GRO3's response under clause 5.2, GRO3 will submit a draft amendment to the relevant Statement of Work for those Services within 10 Business Days of such agreement.

5.4. Execution of Amendment

• Once parties have agreed and executed the amendment, the relevant Statement of Work will be amended accordingly.
• For avoidance of doubt, any variation to the Services is effective only after an amendment is executed by both parties.

6. Use of Services

6.1. Responsibility and Liability

• The Customer is responsible for the use of the Services at Customer Premises and is liable for all expenses and costs arising from that use.

6.2. Prohibited Use

• The Customer must not knowingly use the Services or permit any other person to use the Services:
  1. To break any law or infringe any person’s rights;
  2. To transmit, publish or communicate material that is defamatory, offensive, abusive, indecent, menacing, or unwanted; or
  3. In any way that damages, interferes with, or interrupts the Services or the systems that GRO3 uses to supply the Services.

6.3. Indemnity

• The Customer will indemnify GRO3 against all loss, damage, costs, actions, claims, demands, or liabilities suffered by GRO3 as a result of any person other than GRO3 and its Personnel using or accessing the Services as identified in clause 6.2.

7. Cooperation with Third Parties

• The Customer shall cooperate with any Third Party Contractors engaged by GRO3.

8. Customer and Company Responsibilities

8.1. Customer Responsibilities

• Customer must:
  1. Permit GRO3 Personnel to have access to Customer Premises as reasonably required to undertake the services.
  2. Ensure that GRO3 has full access to both the Customer’s virtual and physical infrastructure during Normal Business Hours or at such other times as Customer and GRO3 mutually agree in writing so as to be able to perform the services agreed.
  3. Ensure that any infrastructure referred to under (2) above in connection with the Service which is not supplied by GRO3 has all required regulatory approvals, is not prohibited by law or any regulator, and is capable of operating with the Service.
  4. Use all reasonable endeavours (at the cost and expense of GRO3) to assist GRO3 in any investigation by any government body or regulator in which GRO3 is involved where Customer's use of the Services is relevant to the investigation and is required by law to assist, but otherwise at Customer's discretion.

8.2. Rescheduling Access

• If GRO3 employees, agents, or contractors attempt to complete services by prior arrangement for Customer, and Customer requires this to be rescheduled without providing at least 48 hours prior notice, then Customer shall pay to GRO3 all costs associated with cancelling, postponing, or rescheduling at the rates specified in the respective Statement of Work.

8.3. GRO3 Responsibilities

• GRO3 acknowledges and agrees that it will:
  1. Comply or procure the compliance with all applicable laws, regulations, guidelines, and other requirements of any relevant government or governmental agency.
  2. Conform or ensure conformance with all applicable codes and standards.
  3. Comply or procure compliance with current industry practice.
  4. Obtain and keep in full force and effect all approvals necessary for the proper and efficient provision of the Services.
  5. Maintain insurance policies that would reasonably be expected from a prudent, expert, and experienced provider of those services, including but not limited to public and product liability insurance with a minimum sum insured of $5 million and professional indemnity insurance with a minimum sum insured of $1 million, which shall remain in force during the Term and for two years from the Termination Date.

9. Fault Reporting

• The Customer may report a Fault with the Services to GRO3 on a 24 x 7 basis, and reported Faults will be dealt with by GRO3 in accordance with the relevant procedure in the relevant Statement of Work.
• The Customer acknowledges that GRO3 is not responsible for Faults caused by Other Suppliers, nor is GRO3 liable to Customer for any failure by that Other Supplier to remedy the Fault within the timeframes in any Service Level.
• GRO3 will use all reasonable endeavours to help rectify the Fault by liaising with the Other Supplier.

10. Transition if Terminated

• In the event of termination, GRO3 shall cooperate with the Customer to ensure a smooth transition of the Services.

11. Fees and Payment Terms

11.1. Invoicing

• GRO3 will invoice Customer for Service Fees and Out-of-pocket Expenses (if any) on a monthly basis on the last day of each month. Subject to there being no dispute in relation to the Services covered by the invoice, the Customer must pay each invoice from GRO3 within 7 days of the date of that invoice, unless otherwise agreed by the parties in writing.

11.2. Non-Payment

• Subject to clause 11.1, if Customer does not pay any undisputed invoice from GRO3 within 15 days of receiving notice from GRO3 to remedy its non-payment, GRO3 may suspend the Services immediately by written notice to Customer and in its absolute discretion, charge Customer interest on any account unpaid on the due date at a rate equal to the lesser of 1.5% per month or the highest allowed under applicable laws, from the due date until the amount is paid in full by Customer.

12. Fees Dispute and GST

• Any disputes regarding fees must be raised within 14 days of the invoice date.
• All fees are exclusive of GST unless otherwise stated.

13. Service Levels

• GRO3 will use its best endeavours to perform or procure the performance of all the Services so as to meet or exceed the Service Levels.
• If GRO3 fails to meet a Service Level in accordance with the relevant Statement of Work, then the remedies available to the Customer are stated in the relevant Statement of Work for that particular Service and in this Agreement.
• GRO3 will perform all Service Level reporting in the manner described in the respective Statement of Work (as the case may be).

14. Intellectual Property and Ownership

14.1. Company IP

• Customer acknowledges that GRO3 IP remains the property of GRO3.
• Any Know How acquired or developed by GRO3 becomes part of GRO3's knowledge base and may, subject to clause 8.1, be used by the Personnel of GRO3 without restriction, even where the Know How was acquired or developed in the course of or as a consequence of providing the Services or any Professional Services to Customer.
• GRO3 grants a personal, non-exclusive, royalty-free licence to Customer in the Territory to use the GRO3 IP solely in conjunction with and to the extent necessary for Customer to use any deliverables of the Services provided by GRO3 to Customer.

14.2. Customer IP

• GRO3 acknowledges that Customer IP remains the property of the Customer.
• Subject to the provision of clause 8, Customer grants a personal, non-exclusive, royalty-free licence to GRO3 in the Territory during the Term of the relevant Statement of Work to use Customer IP to the extent necessary for GRO3 and its Personnel to provide the Services to Customer.

14.3. Third Party Intellectual Property

• GRO3 has set out in each Statement of Work (where applicable) any Materials created and owned by a third party that will be used in connection with the provision of the Services.
• GRO3 will procure for Customer, at Customer's cost, a licence to use those Materials on the terms imposed by the relevant third party. In such circumstances, the Customer must use Materials which are subject to a third-party licence solely in accordance with the relevant third-party licence terms.

15. Confidential Information

• Both parties agree to keep confidential any information disclosed during the performance of the Services.

16. Assignment and Non-Solicitation

• The Customer shall not assign or transfer any rights or obligations under this Agreement without GRO3's prior written consent.
• The Customer shall not solicit or employ any of GRO3's personnel during the term of the Agreement and for a period of 12 months thereafter.

17. Publicity and Site Reference

• The Customer agrees that GRO3 may use the Customer's name and logo for marketing and publicity purposes, subject to prior approval.

18. Force Majeure

• Subject to due compliance with clause (b) below, neither party shall in any circumstances be liable to the other for any delay or non-performance of its obligations under this Agreement arising from a Force Majeure Event. For the avoidance of doubt and notwithstanding anything to the contrary contained in this Agreement, before a party can rely on a Force Majeure Event, that party must comply with clause 18(b) below.

18.1. Obligations in Event of Force Majeure

• In the event of either party being so delayed or prevented from performing its obligations, such party must:
  1. Give notice in writing of such delay or prevention to the other party as soon as reasonably possible, stating the commencement date and extent of such delay or prevention, the cause thereof, and its estimated duration.
  2. Use all reasonable endeavours to mitigate the effects of such delay or prevention of the performance of its obligations under this Agreement.
  3. Resume performance of its obligations as soon as reasonably possible after the removal of the cause of the delay or prevention.

18.2. Termination Due to Force Majeure

• If GRO3 is prevented from performing its obligations by an event of Force Majeure for more than 60 days, the Customer may terminate this Agreement by notice to GRO3.

19. Limitation of Liability

19.1. Exclusions Limited by Law

• Any provision of this Agreement which seeks to limit or exclude a liability of GRO3 or Customer is to be construed as doing so only to the extent permitted by law. Notwithstanding, neither party shall be liable to the other for any indirect or consequential loss (including but not limited to loss of goodwill, loss of business, loss of anticipated profits or savings and all other pure economic loss) arising out of or in connection with this Agreement.

19.2. Liability Cap

• Subject to clauses 19.1 and 19.3, the liability of GRO3 to Customer in respect of any Loss arising in connection with a breach of this Agreement is limited in aggregate to an amount equal to the sum of all amounts paid by Customer to GRO3 during the period of 12 months immediately prior to the occurrence of the breach.

19.3. Unlimited Liability

• Clause 19.2 does not apply to limit or restrict in any way:
  1. GRO3’s liability for the death or personal injury of any person; or
  2. GRO3's liability to Customer for Loss caused by the negligent, malicious, or fraudulent actions or omissions of GRO3 or its officers, affiliates, employees, contractors, agents, or third parties engaged by GRO3 in the provision of Services.

19.4. Customer’s Liability

• Other than liability of the Customer accruing under clauses 18 and 19 and except to the extent that liability cannot be limited or excluded, the total aggregate liability of Customer, its affiliates, officers, subcontractors, service providers, agents, and employees, to GRO3 whether arising under or in connection with this Agreement or the performance or non-performance of, or anything incidental to, this Agreement is limited to twelve months’ Service Fees.

20. Data Protection and Security

20.1. Company Obligations

• GRO3 shall:
  1. Only carry out processing of any Data on the Customer’s instructions.
  2. Implement appropriate technical and organisational measures to protect any Data against unauthorised or unlawful processing and accidental loss or damage.
  3. Not transfer Data to countries outside Australia without informing the Customer.

20.2. Data Processing and Compliance

• GRO3 shall:
  1. Not subcontract any processing or use of the Data without the prior written authorisation of the Customer.
  2. Ensure that access to Data is limited to those Personnel who need access to the Data to meet GRO3’s obligations under this Agreement and that all Personnel are informed of the confidential nature of the Data.
  3. Comply with its obligations under the Privacy Act, and shall not, by act or omission, put the Customer in breach of, or jeopardise its position under the Privacy Act.
  4. Promptly and fully notify the Customer in writing of any notices in connection with the processing of any Data, including subject access requests, and provide such information and assistance as the Customer may reasonably require.
  5. Promptly and fully notify the Customer in writing if any Data has been disclosed in breach of this clause and take every step to enable the Customer to comply with its obligations under the Privacy Act.

21. Coordination with Third Parties

21.1. Cooperation with Third-Party Consultants and Suppliers

• GRO3 may comply with reasonable written requests by the Customer to cooperate with any of Customer's third-party consultants and suppliers for the purpose of GRO3’s obligations under this Agreement, provided Customer agrees in writing to pay all reasonable fees incurred by GRO3 in complying with such requests, at the rates specified in the relevant Statement of Work.
• Prior to providing access or disclosing information pursuant to clause 21.1(a), GRO3 may require Customer's third-party consultants or suppliers to sign a confidentiality agreement in the form reasonably required by GRO3 and to enter into a licence agreement for the use of the Intellectual Property (including GRO3 IP) in any Materials provided by GRO3.
• GRO3 is not liable for any breach of a Service Level which results from complying with the request under clause 21.1(a).

22. Dispute Resolution

• Any disputes arising out of this Agreement shall be resolved through negotiation between the parties. If unresolved, disputes shall be referred to mediation.

23. Termination

23.1. Termination Conditions

• Either party may terminate this Agreement and all the Statements of Work immediately by notice to the other party if:
  1. The other party breaches an obligation under this Agreement or the relevant Statement of Work:
     • Which is not capable of remedy; or
     • Which is capable of remedy, but fails to remedy that breach within 14 days of receipt of a notice requiring it to do so, provided that any notice issued by either party under this clause 23.1(a)(ii) includes reasonably adequate details of the breach so that the other party can understand the exact nature of the alleged breach; or
  2. An Insolvency Event occurs in relation to the other party.

23.2. Early Termination Fees

• If this Agreement or an associated Statement of Work terminates for reasons other than the Customer terminating under clause 23.1, GRO3 will advise of the relevant early termination fees (if applicable) in connection with the relevant services as described in 24.1(a).

23.3. Termination Due to Force Majeure

• If a Force Majeure Event prevents GRO3 from supplying the Services in respect of a Statement of Work for a period of more than 60 days, either party may, without liability to the other, terminate this Agreement immediately by written notice to the other provided that the party seeking to terminate this Agreement as a result of a Force Majeure Event, GRO3 has complied with the provisions of clause 18.1 of this Agreement.

24. Consequences of Termination

24.1. Payment of Early Termination Fees

• If this Agreement or a Statement of Work terminates (for any reason) before the expiry of the relevant Term, Customer must pay to GRO3 any corresponding third-party costs being early termination fee payable by it to a third party due to termination of a service prior to the expiry of the minimum contracted term, on being notified of the amount and the payment due date.

24.2. Customer's Payment Obligations

• If Customer terminates this Agreement without cause, Customer must immediately pay to GRO3 an amount equal to the Service Fees and other fees (excluding fees already paid under clause 24.1) that would have been payable by Customer under the relevant Statement of Work(s) from the date of termination for a period of 3 months after the termination date.

24.3. Actions Upon Termination or Expiry

• If this Agreement is terminated or expires:
  1. Each party must, in connection with the terminated Agreement:
     • Pay all amounts owing to the other up to the date of termination, subject to there being no dispute in relation to those amounts;
     • At its own cost, immediately return to the other all Materials containing or comprising Confidential Information of a party (including a party’s Intellectual Property) (as well as all copies thereof); and
     • Provide the other with such access to its premises as may be required to remove any Equipment belonging to it.
  2. It does not affect any rights or remedies either party may have against the other arising out of or in connection with this Agreement or a Statement of Work prior to termination.
  3. Clauses 3.3(c) [Indemnity], 7 [Intellectual Property], 8 [Confidential Information], 19 [Limitation of Liability], 21 [Dispute Resolution], and 24 [Consequences of Termination] survive the termination of this Agreement.

24. Warranties

24.1. Representations and Warranties

• Each party represents and warrants that:
  1. At the date of this Agreement, it has full corporate power to enter into and give effect to this Agreement and to complete the transactions contemplated by this Agreement; and
  2. It has taken all necessary action to authorise the execution of this Agreement;
  3. The delivery and performance of this Agreement does not contravene any contractual, legal, or other obligations that apply to it, including the infringement of any intellectual property rights of any third party.

24.2. GRO3 Representations and Warranties

• GRO3 represents and warrants that the Services will be carried out:
  1. With due care and skill and a standard of diligence reasonably expected from a prudent, expert, and experienced provider of those services and in accordance with all applicable laws;
  2. Using appropriately qualified Personnel;
  3. In accordance with the Customer’s directions.

24.3. Additional GRO3 Representations

• GRO3 represents that:
  1. At the date of this Agreement, it has obtained and will maintain for the duration of this Agreement all permissions, licences, and consents necessary for GRO3 to perform and or provide the Services;
  2. It has adequate resources to meet its obligations under this Agreement in a timely and reliable manner.