Terms & Conditions – Quantum Control Systems

Terms & Conditions

1. Conditions of this Agreement

This Agreement contains the entire agreement between the parties in respect to the subject matter of this

Agreement. It supersedes any prior agreement or understanding (if any) between the parties and there is no

collateral or other form of agreement between the parties in relation to the subject matter of this Agreement.

2. Definitions

Agreement means this Agreement, and any attachments that may be agreed between the parties, as each may

be amended in writing from time to time;

Confidential Information means, in relation to either party, any information: (a) relating to the terms of this

Agreement; (b) relating directly or indirectly to research or development by, accounting for, or the marketing of,

the business of that party or its suppliers or customers; (c) disclosed by that party to the other party on the

express basis that such information is confidential; or (d) which might reasonably be expected by the other party

to be confidential in nature;

Consequential loss includes any consequential loss, special or indirect loss, real or anticipated loss of profit, loss

of benefit, loss of revenue, loss of business, loss of goodwill, loss of opportunity, loss of savings, loss of

reputation, loss of use and/or loss or corruption of data, whether under statute, contract, equity, tort (including

negligence), indemnity or otherwise. However, your obligation to pay us the Contract Price will not constitute

“Consequential Loss”.

Customer means the customer specified in this Agreement and where applicable includes its employees,

contractors and agents;

Default Interest Rate means interest at the rate of 5% above the base lending rate charged by QCS’s bankers to

QCS from time to time;

Design means “Documentation”, “Software” and “Hardware”;

Documentation means any user, training or system manuals for QCS (whether in printed or electronic form) that

describes and provides guidance on the use of QCS Design (or any aspect of QCS);

GST means GST as defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth), or any like tax;

Hardware means any design of any physical part of the scope of the work the subject of this Agreement;

Home Base means the current legal address of QCS;

Intellectual Property means registered and unregistered trademarks (including logos and trade files), domain

names, copyright, patents, petty patents, utility models, registered and unregistered designs, circuit layouts,

rights in computer software, databases and lists, Confidential Information, software (whether in object code or

source code), and all other rights anywhere in the world resulting from intellectual activity, whether registerable

or not;

QCS and QUANTUM CONTROL SYSTEMS means QUANTUM CONTROL SYSTEMS Pty Ltd (ABN: 74 6203 698 79);

Software means the software and other related QCS products which: (a) form part of QUANTUM CONTROL

SYSTEMS; and (b) is owned or licensed by or developed by, or on behalf of, QCS and supplied to Customer,

including all upgrades, updates, alterations and modifications and other changes to such software by or on

behalf of QCS from time to time, but excluding any third party software and firmware forming part of, or

supplied with, the QUANTUM CONTROL SYSTEMS solution;

3. Payment Terms

To the extent that any security of payment legislation applies in any jurisdiction to which the Agreement relates,

the customer shall not do anything to prejudice QCS’ ability to rely on its rights under that legislation.

3.1. Invoices

Invoices shall be submitted by QCS at the end of each calendar month for the value of goods and services

provided within that month, including but not limited to equipment purchased by QCS and constructed and

manufactured off-site.

The Customer will pay QCS on an invoice within 30 days from the date that it is presented.

3.2. Taxes

The Customer is responsible for all GST and any other taxes, duties and levies (other than QCS income tax)

assessed in connection with its use of QCS and the provision of services under this Agreement.

3.3. Default Interest for Late Payment

Subject to clauses 3.4, the Customer must pay QCS interest at the Default Interest Rate on any overdue amounts

under this Agreement, calculated daily from the due date until the actual date of payment. The customer will

pay QCS all reasonable costs (including collection costs and legal costs on a solicitor-client basis) that QCS incurs

in attempting to recover or recovering any such overdue amounts.

3.4. Disputed Invoices

Where the Customer has reasonable grounds to dispute any portion of any amount invoiced by QCS to the

Customer under this Agreement (disputed portion):

(a) The Customer will notify QCS of such dispute and the grounds for such dispute within 5 Business Days of

receiving the invoice;

(b) any undisputed portion of the invoice will remain payable on the due date for payment;

(i) the disputed portion until the parties' dispute has been resolved by agreement between the

parties; or

(ii) any interest under clause 3.3 on the disputed portion unless the dispute is resolved with the

effect that the Customer is required to pay all (or part) of the disputed portion, in which case

the Customer will pay the interest on the disputed portion (or that part of that disputed

portion) in accordance with clause 3.3. Interest will be payable from the date that payment

would have been due under clause 3.1, but for the dispute until the date that disputed

portion is paid to QCS in full.

4. Limitation of Warranties

Any and all warranties given by QCS pursuant to this Agreement or at law are limited (to the extent permitted by

law) by the following:

(a) QCS will not be liable for any indirect, economic loss, consequential loss or special damages nor for any

transportation, installation costs or adjustments or other expenses that might arise as a result of the

workmanship of QCS or its contractors or during the repairs or recommissioning of any part of the WUC.

(b) QCS gives no warranty in respect of parts or products not manufactured by QCS and any such liability

shall be limited to by the express warranty of the manufacturer or supplier.

Customer, its agent, or employees including but not limited to any modification of QCS workmanship,

materials by the Customer any faulty installation by the Customer or another party.

5. Limitation of Liability

QCS liability in any event for any claim, action, demand, loss or damage howsoever arising out of or in

connection with this Agreement shall be limited to and shall not exceed the amount of the Contract Price.

Neither party will be liable for Consequential Loss.

A party’s liability for any Liability under this Agreement will be reduced proportionately to the extent the

relevant Liability was caused or contributed to by the acts or omissions of the other party (or any of its

personnel), including any failure by that other party to mitigate its loss.

Certain legislation, including the Australian Consumer Law, and similar consumer protection laws and

regulations, may confer you with rights, warranties, guarantees and remedies relating to the supply of the

Goods/Services/Goods and Services by us to you which cannot be excluded, restricted or modified (Consumer

Law Rights). To the extent that you maintain Consumer Law Rights at law, nothing in this Agreement excludes

those Consumer Law Rights.

In respect of any failure by us to comply with relevant Consumer Law Rights, our Liability Is limited (at our

discretion) to:

(a) replacing the Goods or the supply of equivalent Goods, or the payment of the cost of replacing the

Goods or of supplying equivalent Goods;

(b) the repair of the Goods, or the payment of the cost of having the Goods repaired; and/or

6. Intellectual Property

All Intellectual Property rights in QCS, including software, documentation, any delivered work or work under

development, created by or on behalf of QCS, under or in connection with this Agreement, are exclusively owned

by QCS (or QCS’s licensors or suppliers). The Customer acknowledges that there is no transfer of title, Intellectual

Property rights or ownership to the Customer under this Agreement, and the Customer will not dispute QCS’s (or

QCS’s licensors or suppliers) ownership of the property referred to in this clause.

QCS retains all rights to all background Intellectual Property developed outside of this Agreement. QCS grants

the Customer a license to use Intellectual Property as per the terms of the Licensing Agreement in section 10.

7. Special Conditions

7.1. Working on Customer Sites

Where QCS personnel are required to work on a Customer site, the Customer agrees to provide to QCS

personnel:

(a) A safe environment and a safe system of work;

(b) Adequate instruction in their specific tasks to ensure their occupational health and safety and to ensure

that all of their work is performed safely;

(d) Details, if required, of all policies and procedures relating to a) through to c) above upon commencement

of their works with the client.

The Customer agrees to allow QCS all reasonable access to its site and to relevant safety documentation to

enable QCS to conduct site inspections and otherwise comply with its occupational health and safety obligations.

7.2. Working Away from Home Base

7.2.1. Delayed Starts

Costs associated with delayed starts shall be borne by the client. This includes the cost of flights, accommodation

and any associated expenses.

7.2.2. Local Transport

Where local transport is provided by the Customer it shall be available for business and private use.

7.2.3. Office Facilities

Where required, the Customer shall make available all normal office facilities including furniture, photocopying,

telephone and facsimile and secure storage tools and equipment.

7.2.4. Working Hours

The expected working hours will be as nominated in the proposal. Work periods outside of this shall be by

agreement with the employee concerned.

7.3. Safety Equipment

QCS will provide standard Personal Protective Equipment, including clothing, footwear, helmets ear protection

safety glasses and gloves. Unless stated elsewhere, any special requirement equipment will be provided by the

Customer.

7.4. Tools and Equipment

Unless stated elsewhere, any specialised tools, equipment, or software, will be provided by the Customer.

7.5. Damages

Except where required by mandatory operation of law, QCS shall not be liable for incidental, consequential or

special damages of any kind for any reason.

7.6. Travel

(a) Travel and accommodation and living away from home charges are applicable for all works away from

the Home Base metropolitan area;

(b) Travel time between the Home Base and a Customer site located within the Home Base metropolitan

area will be charged.

8. General

8.1. Entire Agreement

This Agreement records the entire arrangement between the parties relating to all matters dealt with in this

Agreement and supersedes all previous arrangements, whether written, oral or both, relating to such matters.

8.2. Disputes

If the parties fail to negotiate a resolution to a dispute within a reasonable time (not exceeding 20 Business Days

from formal notice of the dispute being given by one party to the other), either party may require that the

dispute be submitted to mediation, such mediation to take place in Sydney, New South Wales, Australia. If the

parties fail to agree on a mediator within 5 Business Days after the submission to mediation, one will be

appointed by the President for the time being of the Law Society of New South Wales or its successor. In the

event of any submission to mediation:

(a) the mediator will not be acting as an expert or as an arbitrator;

(b) the mediator will determine the procedure and timetable for the mediation; and

All discussions in mediation will be confidential and without prejudice.

Neither party may issue any legal proceedings (other than for urgent interlocutory relief) relating to any dispute

unless that party has first taken all reasonable steps to comply with the dispute resolution process above.

8.3. Waiver

No waiver of any breach, or failure to enforce any provision, of this Agreement at any time by either party shall

in any way limit or waive the right of such party to subsequently enforce and compel strict compliance with the

provisions of this Agreement.

8.4. Severance

Any provision in this Agreement which is or becomes unenforceable, illegal or invalid for any reason shall be

severed or read down and shall not affect the enforceability, legality, validity or application of any other

provision which shall remain in full force and effect.

8.5. Assignment

QCS may assign all or any of its rights and obligations under this Agreement to any person or entity without

Customer's consent. Customer may not transfer or assign any of its liabilities or rights under this Agreement to

any other person or entity without QCS’s prior written consent (such consent not to be unreasonably withheld,

provided QCS is satisfied as to the suitability of the assignee and Customer meets QCS’s reasonable costs in

relation to the assignment).

8.6. Amendment

Except as expressly provided for in this Agreement, no amendment to this Agreement will be valid unless

recorded in writing and signed by a duly authorised senior representative of each party.

8.7. Re-negotiation

This Agreement is subject to re-negotiation after a maximum period of 12 months.

8.8. Governing Law and Jurisdiction

This Agreement is governed by the laws of New South Wales and the parties submit to the jurisdiction of the

New South Wales courts in respect of all matters relating to this Agreement.

8.9. Remedies

The rights, powers and remedies provided in this Agreement are not exclusive of any rights, powers or remedies

provided by law.

8.10. Subcontracting

QCS may appoint subcontractors to perform any of its obligations under this Agreement.

8.11. Counterparts and Copies

This Agreement may be signed in any number of counterpart copies which, read together, will constitute one

and the same document. Any facsimile copy of this agreement or copy of this agreement sent via email in PDF

format (including any facsimile copy or copy sent via email in PDF format, of any document evidencing either

party's signature of this agreement) may be relied upon by the other party as if it were an original copy. This

Agreement may be entered into on the basis of an exchange of such facsimile or PDF copies.

8.12. Conflicts

In the event of any conflict or inconsistency between this Agreement and the terms of a purchase order provided

by Customer to QCS, this Agreement shall govern and control.

8.13. Notices

Any notice or other communication to be given under this Agreement must be in writing and must be served by

one of the following means and in respect of each is deemed to have been served as described:

(a) By personal delivery – when received by the party.

(b) By post by registered or ordinary mail – on the second working day following the date of posting to the

addressee’s registered office.

The addresses for the parties for Notices shall be as set out as part of the Formal Agreement, or such other

address as either party specifies by notice in writing to the other.

8.14. Non-Solicitation

The customer shall not, without the prior written consent of Quantum Control Systems Pty Ltd, at any time,

solicit, entice or employ from Quantum Control Systems Pty Ltd any person who is, or has been, engaged as an

employee of Quantum Control Systems Pty Ltd.

If the Customer breaches this clause 8.14, the Customer agrees to pay to QCS liquidated damages equal to 30%

of the total annual remuneration payable to the relevant QCS employee at the time the breach occurred. The

parties agree that this amount represents a genuine pre-estimate of the loss QCS is likely to suffer due to the

breach. The payment of liquidated damages does not limit any other remedies available to QCS under this

Agreement or at law.

9. Confidentiality

Confidential Information: Each party will maintain as confidential at all times, and will not at any time, directly

or indirectly:

(a) disclose or permit to be disclosed to any person;

(b) use for itself or to the detriment of the other party;

any Confidential Information of the other party except as, and then only to the extent:

(a) required by law;

(b) that the information is already or becomes public knowledge, otherwise than as a result of a breach, by

the receiving party, of any provision of this Agreement;

any breach of confidentiality by the third party;

(d) that the information is developed independently by the receiving party without reliance on any of the

Confidential Information of the other party;

(e) authorised in writing by the other party; or

(f) reasonably required by this Agreement (and, without limiting the effect of this clause, a party may

disclose Confidential Information of the other party only to those of its officers, employees or

professional advisers on a "need to know" basis, as is reasonably required for the implementation of this

Agreement).

10. Licensing Agreement

QUANTUM CONTROL SYSTEMS LICENSING AGREEMENT (“Licensing Agreement”)

10.1. License Agreement

You should carefully read the following terms and conditions before using the software. By accepting our

quotation or using the Design you indicate that you accept this License Agreement.

The Design remains the property of QCS. The Design is licenced not sold or transferred to you. QCS retains all

10.2. Grant of License

This Licensing Agreement grants you the following rights:

(a) Internal Use: the end-user is granted a non-exclusive licence to use the Design for internal use only

within the site it was originally purchased for. The software may be copied or installed on any other PCs

within the site subject to the licensing of our supplier’s software.

(b) Modifications: the software may be changed by end-user or another party for the purpose of changes to

the way the Design is required to operate or to fix any errors. If modifications are made to the Design, all

intellectual property rights associated with the modifications will automatically be assigned to QCS. QCS

is not liable to fix any problems caused by the modifications and any warranties given by QCS in respect

of software shall be void.

10.3. Restrictions

10.3.1. Distribution

The Design must not be assigned sold or distributed to any other party or site within the company without the

prior consent of QCS.

10.3.2. Copyright

All title and copyrights in and to the Design, the accompanying printed materials, and any copies of the Design

are owned by QCS or its suppliers. All title and intellectual property rights in and to the content that may be

accessed through use of the software is the property of the respective content owner and may be protected by

applicable copyright or other intellectual property laws and treaties. This Licensing Agreement grants you no

rights to use such content. You may not remove or modify any copyright notice or the method by which it may

be invoked.

10.3.3. Trademarks

This Licensing Agreement does not grant you any rights in connection with any trademarks or service marks of

QCS.

10.3.4. Reverse Engineering

Except as expressly permitted by this Agreement, and except to the extent that applicable laws (including the

modify, reverse engineer, decompile or disassemble the Software.

10.4. Disclaimer

In no event unless required by applicable law or agreed to in writing will QCS be liable for any damages, including

any general, special, incidental or consequential damages arising out of the use or inability to use the Design

(including but not limited to loss of profit, loss of data or data being rendered inaccurate or losses sustained by

you or third parties or a failure of the software to operate with any other programs), even if such holder or other

party has been advised of the possibility of such damages.

10.5. Reservation of Rights

All other rights and restrictions not specifically granted in this license are reserved by QCS.

10.6. Termination of Licence

QCS may terminate this Licensing Agreement immediately by notice to you if:

(a) you fail to pay QCS any amount due to it by you after receiving a written demand requiring payment

within 14 days.

(b) you are presumed insolvent within the meaning of any applicable Australian Law, you are placed into

liquidation, administration or bankruptcy (as the case may be) or you have a receiver, receiver and

manager or mortgagee in possession appointed over your assets.

Immediately upon termination of this Licensing Agreement, you must cease to use the Design and return to QCS

all documents, media, or items of any description containing, forming part of, associated with or utilising any of

the Design.

The obligations created by this Licence Agreement survive the termination of this Licence Agreement.