Terms and Conditions

1. Definitions

The following expressions shall have the following meanings:

A. “Agreement” means these Terms and Conditions, including any attachments hereto.

B. “AI/ML Software” means the artificial intelligence and/or machine learning software comprising all of or any part of the following: concepts, architectures, models, algorithms, code and design, including other software scripts and code which September AI is to create and /or supply to the Client in accordance with the Proposal.

C. “Client” means any entity who purchases Services and /or Products from September AI.

D. “Developed IP” means all present or future Intellectual Property Right which is brought or required to be brought into existence by or on behalf of September AI under this Agreement.

E. “Existing IP” means any Intellectual Property Right in existence at the date of this Agreement or comes into existence after the date of this Agreement other than in connection with this Agreement.

F. “Fee” means the total sum due by the Client for the Products and /or Services agreed in the Proposal.

G. “Intellectual Property Rights” means all intellectual property rights, including without limitation: patents, inventions, copyright, registered designs, trademarks, rights in circuit layouts and the right to have confidential information kept confidential, and any application or right to apply for registration of any of those rights.

H. “Project Objective” means the defined objective/s that which the AI/ML Software is to achieve.

I. “Proof of Concept” means AI/ML Software concepts, architectures, models, algorithms, code and design developed to achieve the Project Objective.

J. “Project” means a defined set of Project tasks, objective/s and deliverables for the AI/ML Software.

K. “Proposal” means the written proposal for the Project, and forms the reference document to this agreement.

L. “Research Project” means a project where the objective is to explore whether a Project Objective is viable or not.

M. “September AI” means September AI Pty Ltd.

N. “Services” means any consultancy or other services which September AI is to provide to the Client in accordance with these conditions.

O. “Terms and Conditions” means the Terms and Conditions as set out in this document and any subsequent Terms and Conditions agreed in writing between September AI and the Client.

P. “The Term” means the period commencing on the date of this Agreement and continuing for the Project timing as specified in the Proposal.

2. The Project

A. September AI shall provide the Client with services for the purpose of creating the AI/ML Software and other works as detailed in the deliverables of The Project, in accordance with the terms and conditions of this Agreement.

B. September AI shall provide to the Client the final AI/ML Software after Project Objective has been achieved, subject to full payment having been received by September AI.

C. Unless explicitly itemised in the Proposal, September AI shall not be responsible for any other services including without limitation hardware and software installation, systems integration, data conversion, data import and training.

i. September AI will ensure that adequate instruction and demonstration is given to the Client during AI/ML Software delivery.

D. For the avoidance of doubt, September AI shall not be responsible under any circumstances for backup and archiving of the AI/ML Software or of any data used by the AI/ML Software on computer equipment belonging to the Client or the Clients appointed computer hosting infrastructure or supplier’s infrastructure.

3. Change in Specifications

A. The Client may request that reasonable changes be made to the tasks associated with the development of an AI/ML Software solution.

B. If the Client requests such a change:

i. September AI will use its best efforts to implement the requested change at no additional expense to the Client and without delaying delivery of the AI/ML Software.

ii. In the event that the proposed change/s will, in the reasonable opinion of September AI, require a delay in the delivery of the AI/ML Software or would result in additional expense to the Client, then the Client and the September AI shall confer and the Client may either withdraw the proposed change/s or require September AI to deliver the AI/ML Software with the proposed change and subject to the delay and/or additional expense.

iii. The Client agrees and acknowledges that the judgment as to if there will be any delay or additional expense shall be made solely by September AI, acting reasonably.

4.Support and Maintenance

A. September AI will, for a period of 30 days of delivery of the final AI/ML Software, provide support for bug fixes, performance issues or failure of code, without additional charge to the Client.

B. Any support and maintenance services, updates, versions, performance changes or new releases after this period shall be contracted under a separate agreement, if so required.

5. Fees, Deposit and Payment

A. A 25% deposit of the total Fee payable in this Proposal is due immediately upon the Client instructing September AI to proceed with the Project.

B. The remaining 75% shall be due on approval of the Proof of Concept.

C. Where the Project experiences delays, outside of September AI’s control, September AI will be entitled to issue a progress invoice to the Client for costs and work incurred in respect thereof at the end of each month.

D. Where the Proof of Concept includes a research component, and if September AI, after research and testing, determines that the Project Objective is not viable the Project will be deemed a Research Project.

i. September AI will discount the Fee by 60% and;

ii. Will supply a report on routes, methods and technologies explored, detailing their relative efficacy in solving the Project Objective.

E. If any part of the Fee under this Agreement is in arrears for more than fourteen (14) days from the due date of payment then September AI shall be entitled to charge interest calculated daily from the due date of payment to the actual date of payment, at an interest rate equivalent to 2 percent (2%) per month.

6. Joint and Several Liability

A. The Client acknowledges that where one or more persons or entities comprise the Client, then each shall be jointly and severally liable in respect of the payment for the Project carried out by September AI.

7. Warranties

A. September AI warrants that the AI/ML Software will perform substantially in accordance with the Project Objective, where the Project Objective is deemed viable.

B. The Client warrants that the Client will only use the Software for the Client’s own business being operated within its field of business.

C. If, within 30 days of delivery of the final AI/ML Software, the Client notifies September AI in writing of:

i. The fact that the AI/ML Software is not performing substantially in accordance with the Specifications and Scope of Work; and

ii. The alleged defects or errors, with sufficient particularity to enable September AI to remedy the defects or errors, September AI must at its own expense, commence to examine the AI/ML Software within three working days and, as soon as practicable thereafter, rectify the defect in the Software.

D. The warranty contained in subclause (c):

i. Is subject to the Client having fully complied with its obligations under these Terms and Conditions;

ii. Is not a warranty that the results obtained from the Proof of Concept will be in accordance with the Client’s expectations; and

iii. Does not operate where the substantial non-performance arises in any respect from the installation of the AI/ML Software, a change in the agreed input data format, the nature or operation of the equipment on which the AI/ML Software is used or the use of any materials or software not provided by September AI.

It is hereby acknowledged that computer software inherently contains from time to time defects, faults and difficulties (bugs), however well developed and supported, and acceptance of the AI/ML Software under this Agreement shall not be unreasonably withheld due to minor faults in the software.

8. Indemnity

A. September AI warrants that it has the right to grant the Licence to the Client.

B. Subject to subclause (c), September AI shall indemnify and hold harmless the Client against any claim made against the Client by a third party alleging that the AI/ML Software infringes the copyright of that third party.

C. Except in relation to liability for personal injury (including sickness and death), property damage or an infringement of confidentiality or Intellectual Property Rights, the liability of September AI in damages (including special, indirect or consequential damages, which damages will be deemed to include loss of revenue, loss or profit and opportunity loss) in respect of any act or omission of September AI in connection with its obligations under this Agreement will not exceed the sum of $10,000.00, even if September AI has been advised by the Client as to the possibility of such losses being incurred.

D. In respect of any claim between the parties under or in connection with this Agreement, the parties agree that to the maximum extent permitted by law, the operation of Part 1F of the Civil Liabilities Act 2002 (WA) or of any laws having a similar effect in the Commonwealth and other states and territories of Australia with respect to proportionate liability, are excluded and have no application or effect.

9. Intellectual Property Rights

A. Each party acknowledges and agrees that the other party retains ownership of that party’s Existing IP.

B. The Client grants to September AI a non-exclusive, irrevocable, royalty-free licence to use the Client’s Existing IP during the Term for the purpose of performing its obligations under this Agreement.

C. Unless specified otherwise in the Proposal, subject to the Client’s compliance with this Agreement and payment of all applicable Fees, the Client will exclusively own all Developed IP from the date of the full Fee payment.

D. To the extent that the AI/ML Software incorporates any of September AI’s Existing IP, September AI grants to the Client a non-exclusive, royalty-free licence to use September AI’s Existing IP to enable the Client to use the AI/ML Software.

E. Despite any other clause in this Agreement, where the AI/ML Software contains Intellectual Property Rights owned by a third party (e.g. Licensed Software or Documentation for Licensed Software or a Hardware Product), this Agreement does not transfer ownership of such Intellectual Property Rights to the Client and the applicable third party will retain all Intellectual Property Rights in such Deliverable.

F. September AI Intellectual Property rights and the obligations of the Client set out above shall survive the termination or completion of any Agreement.

10. Client Obligations

The Client will:

A. Provide September AI with access to the information, equipment, facilities and the site or infrastructure that September AI reasonably requires to perform the Services, including reasonable and necessary on-line access, computing facilities, internet services and working space as September AI may reasonably request.

B. Provide isolated working environments, free from exposure to live production systems, sensitive databases or systems that have the potential to compromise live systems, and will:

i. Ensure backups of data, code and architectures.

C. Provide sufficient, qualified personnel capable of performing all of its duties and obligations under the Proposal and this Agreement and will provide reasonable access to its relevant personnel.

D. Refrain from directly or indirectly recruiting any person employed or engaged by September AI for the purposes of providing the services for a period of twelve months following completion of the services. In the event that a Client does recruit any person employed or engaged by September AI, September AI reserve the right to invoice that Client for a sum that represents 6 months gross pay for that employee or equivalent industry payrate, whichever is the higher.

11. Termination

A. Each party may terminate this agreement by giving 7 days’ written notice to the other party.

B. A termination of this Agreement will not affect the Client’s liability to pay Fees for Services already performed

C. Without prejudice to September AI’s other remedies, this Agreement (including any unperformed obligations of the September AI) may be terminated by the September AI’s written notice to the Client that no further Services and Deliverables will be supplied if:

i. the Client is in default under the Agreement (including the terms of any licence granted pursuant to the Agreement); or

ii. the Client becomes insolvent; or is subject to the appointment of a receiver, manager, liquidator, or statutory manager; or commits an act of bankruptcy; or makes a scheme of arrangement with its creditors; or is unlikely to be able to meet its obligations to September AI (in the opinion of the September AI).

D. Upon Termination the Client loses custody of and the right to use the AI/ML Software or components thereof. If notice is given to the Client to terminate the Agreement, September AI may, in addition to terminating the Agreement repossess any of its property in the possession, custody or control of the Client; retain any fees paid; charge a reasonable sum for work performed in respect of which work no sum has been previously charged; be regarded as discharged from any further obligations under this Agreement; and pursue any additional or alternative remedies provided by law.

12. Goods and Services Tax (GST)

A. All quotations provided by September AI are inclusive of GST unless otherwise stated.

13. General

A. Entire Agreement: This Agreement supersedes all prior agreements, arrangements and undertakings between the September AI and the Client and constitutes the entire agreement between the parties relating to the Project. No addition to or modification of any provision of this Agreement shall be binding upon the parties unless made by written instrument signed by a duly authorised representative of the party.

B. Notices: All notices which are required to be given under this Agreement must be in writing and must be sent to the address of the recipient. Any notice may be delivered by hand or by prepaid letter or email. Any such notice will be deemed to have been served when delivered (if delivered by hand) or 48 hours after posting (except by prepaid letter) or when on transmission by the sender (if sent by email), when the email enters the recipient’s mail server.

C. Assignment: The Customer must not assign, whether in whole or part, the benefit of this Agreement or any rights or obligations hereunder, without the prior written consent of September AI.

D. Governing Law: This Agreement shall be governed by and construed in accordance with the laws for the time being in force in Western Australia and the parties agree to submit to the jurisdiction of the courts and tribunals of that state.

E. Waiver: No forbearance, delay or indulgence by a party in enforcing the provisions of this Agreement shall prejudice or restrict the rights of that party, nor shall any waiver of those rights operate as a waiver of any subsequent breach.

F. Severability: Should any part of this Agreement be or become invalid, that part shall be severed from this Agreement. Such invalidity shall not affect the validity of the remaining provisions of the Agreement