Terms and Conditions

STOCKHOLM TRADER PTY LIMITED ACN 107 331 304
TERMS AND CONDITIONS
These terms and conditions apply to Stockholm Trader Pty Ltd trading as TradingCoders (TradingCoders) provision to the Client of the financial trading software programming and other services specified in the Proposal. Unless TradingCoders agrees otherwise in writing, these terms and conditions will also apply to all Additional Services.

In these terms and conditions, unless the context otherwise requires:

• (a) ACL means the Australian Consumer Law set out in Schedule Two of the Competition and Consumer Act 2010 (Cth).
• (b) Additional Services means any services provided to the Client by TradingCoders from time to time which are outside the scope of the Services set out in the Proposal or which relate to a new or additional Project.
• (c) Agreement means each agreement formed under these terms and conditions in respect of TradingCoders provision of Services to the Client.
• (d) Background Intellectual Property means:
  • any Intellectual Property belonging to TradingCoders which subsisted or came into existence before TradingCoders commenced providing the Services to the Client; and
  • any Intellectual Property belonging to TradingCoders which subsisted or came into existence independently of TradingCoders' provision of the Services to the Client.
• (e) Business Days means a day that is not a Saturday, Sunday or public holiday in Melbourne, Australia.
• (f) Client means the client specified in the Proposal.
• (g) Client Materials means any code, software, data, information, materials, drawings, designs, representations or other content in any form provided by the Client to TradingCoders in connection with TradingCoders' provision of the Services.
• (h) Confidential Information means all confidential information of a party which relates to the subject matter of an Agreement (including the Proposal) and includes the confidential information relating to either party, its business or activities including know how, financial information, quotes, sales and supply details but does not include information which:
  • at the time of first disclosure is already in the public domain;
  • after disclosure becomes part of the public domain otherwise than by disclosure in breach of the terms of these terms and conditions; or
  • the party to whom the information was disclosed can prove that the information was in its possession before the time of first disclosure by the other party.
• (i) Consequential Loss means Loss beyond the normal measure of damages and includes, without limitation, indirect Loss, Loss of revenue, Loss of reputation, Loss of profits, Loss of actual or anticipated savings, Loss of bargain, lost opportunities, including opportunities to enter into arrangements with third parties, Loss of use, cost of capital or costs of substitute goods, facilities or services.
• (j) Deliverable means any code (including, without limitation, source code and object code), document, program, software or other item delivered or required to be delivered to the Client, as specified in the Proposal.
• (k) Developed IP means the Intellectual Property in a Deliverable owned by TradingCoders (excluding any Background Intellectual Property), which Intellectual Property is created by TradingCoders as a direct result of TradingCoders creating the Deliverable for the Client.
• (l) Expenses means any expenses specified in the Proposal or incurred by TradingCoders with the consent of the Client.
• (m) Fees means the fees and charges for the provision of the Services, as specified in the Proposal or as varied pursuant to clause 3 or by agreement between TradingCoders and the Client.
• (n) Force Majeure Event means the occurrence of an event or circumstances beyond the reasonable control of the party affected by it including (without limitation) war (declared or undeclared) civil commotion, military action, or an act of sabotage, strike, lockout or industrial action, storm, tempest, fire, flood, earthquake or other natural calamity or an ongoing internet or telecommunications outage.
• (o) GST Act means A New Tax System (Goods and Services Tax) Act as amended from time to time.
• (p) GST means any goods and services tax imposed under the GST Act.
• (q) Hourly Rates means the hourly rates specified in the Proposal, as varied by notice by TradingCoders to the Client from time to time.
• (r) Intellectual Property means all registered and unregistered rights in respect of patents, copyright, designs, trade marks, trade secrets, know-how, confidential information and all other intellectual property.
• (s) Loss means any loss, liability, cost, claim, expense, damage, charge, penalty, outgoing or payment however arising, whether present, unascertained, immediate, future or contingent.
• (t) Proposal means the proposal document provided by TradingCoders to the Client, as amended by agreement between TradingCoders and the Client or pursuant to clause 3.
• (u) Services means the software, programming, coding, consultancy and Additional Services provided to the Client by TradingCoders pursuant to a Proposal or any other agreement between the parties.
• (v) Timeframes means any estimated timeframes specified in the Proposal for the completion of the Deliverable or any part of it.

Upon the Client notifying TradingCoders that it accepts a Proposal (regardless of whether such notification is written or otherwise), there will be an agreement between TradingCoders and the Client for TradingCoders to provide the Services and any Additional Services to the Client in accordance with these terms and conditions. Each accepted Proposal will give rise to a separate agreement between the Client and TradingCoders.

If the Client wishes to vary any aspect of the Services or the Proposal it must notify TradingCoders in writing of the proposed variation. If TradingCoders is willing to accept the proposed variation, TradingCoders will notify the Client in writing of any changes to the Fees or Timeframes in respect of the variation. Unless the Client notifies TradingCoders that it does not wish to proceed with the variation within 10 days of receiving this notice, the variation will be deemed to be agreed between the parties immediately upon the expiry of the above period and the Services, Proposal, Fees or Timeframes will be varied accordingly.

TradingCoders will use reasonable endeavours to provide the Services to the Client and complete each Deliverable in accordance with the Timeframes. However the Client agrees that the Timeframes are an estimate only and TradingCoders does not warrant that the Deliverable or any part of it will be completed within the Timeframes. TradingCoders will not be liable for any Loss incurred by the Client as a result of any delay or failure to complete the Deliverable or provide the Services in accordance with the Timeframes.

5.1 Fees and payment terms

The Client agrees to pay to TradingCoders:

• the Fees for the Services;
• any fees for the Additional Services; and
• any Expenses which TradingCoders invoices the Client for.

Any invoice issued by TradingCoders must be paid by the Client within 30 days of the date of the invoice.

5.2 Failure to pay

If the Client fails to pay any amounts due to TradingCoders under these terms and conditions by the due date for payment then (without prejudice to TradingCoders' other rights in respect of that failure):

• TradingCoders may charge the Client interest on all amounts overdue at the interest rate fixed from time to time pursuant to section 2 of the Penalty Interest Rate Act 1983 (Vic), which interest will accrue and be chargeable from the first day on which such amounts become overdue until TradingCoders receives payment of all such amounts (including all interest) by way of cleared funds;
• TradingCoders may suspend its provision of any or all Services (including Services provided under a separate Agreement) until such time as the outstanding amount is paid in full (together with any interest); and
• TradingCoders will not be liable for any Loss suffered by the Client as a result of TradingCoders exercising its rights under this clause 5.2.

6.1 Client responsibilities

The Client will be responsible for:

• ensuring all information it provides TradingCoders in relation to its existing software, infrastructure and requirements is accurate and true;
• completing all tasks or items specified in the Proposal as being the responsibility of the Client; and
• providing TradingCoders with all other assistance reasonably requested by TradingCoders from time to time.

7.1 No disclosure

A party must not, without the prior written approval of the other party, disclose the other party's Confidential Information to a third party.

7.2 Employees and contractors

Each party will take all reasonable steps to ensure that its employees, agents and sub-contractors do not disclose the other party's Confidential Information to a third party.

7.3 Permitted disclosure

A party will not be in breach of clause 7.1 in circumstances where it is legally compelled to disclose the other party's Confidential Information. Both parties may also disclose Confidential Information of the other party to its related companies, solicitors, auditors, insurers and accountants.

8.1 Termination for cause

TradingCoders may, by written notice to the Client, terminate an Agreement with immediate effect if:

• the Client fails to comply with any written notice issued by TradingCoders requiring the Client to remedy a breach, non-observance or non-performance of the Client's obligations under these terms and conditions within seven business days of receiving that notice;
• the Client commits a breach of these terms and conditions which is incapable of remedy;
• the Client goes into liquidation, is wound up, becomes insolvent or has a receiver appointed over all or any substantial part of its assets; or
• the Client proposes or enters into any schemes or arrangements with its creditors.

8.2 Termination without cause

TradingCoders may, at its discretion, terminate an Agreement by providing the Client with 30 days written notice of termination, provided that TradingCoders must refund all payments made by the Client in respect of that Agreement.

8.3 Consequences of termination

Immediately upon termination or expiry of an Agreement:

• the Client must pay to TradingCoders all Fees accrued but unpaid, without deduction, within 10 days of TradingCoders providing the Client with an invoice for such Fees; and
• TradingCoders will not have any obligations to continue providing the Services to the Client.

9.1 Licence of TradingCoders Intellectual Property

TradingCoders grants to the Client a non-exclusive, perpetual, world-wide licence to use, reproduce and sub-licence any Background IP and Developed IP which is used or incorporated in a Deliverable, for the sole purpose of the Client using the Deliverable for its intended purpose.

9.2 TradingCoders owns the IP

The Client acknowledges that TradingCoders is the owner of the Developed IP and the Background IP and the Client has no right to the Developed IP and the Background IP other than the licence granted under clause 9.1.

9.3 Licence of Client Materials

To the extent necessary for TradingCoders to be able to provide the Services to the Client, the Client grants TradingCoders a non-exclusive licence to use and reproduce all Intellectual Property in the Client Materials.

The Client warrants and represents to TradingCoders that:

• it is the owner of the Intellectual Property in the Client Materials and it has the right to use, publish, licence or otherwise deal with the Client Materials; and
• the Client Materials do not and will not infringe the Intellectual Property or other similar rights of a person.

To the maximum extent permitted by law, TradingCoders expressly excludes all conditions, warranties, terms and guarantees which may be implied in respect of the provision of the Services or imposed by statute, custom, general law or any applicable international conventions.

Under the ACL, a number of consumer guarantees may apply in respect of the Services, being guarantees regarding:

• the Services being rendered with due care and skill;
• the Services being fit for the known purpose for which the Services are being acquired, being fit for any disclosed purpose or being capable of achieving any disclosed result; and
• the Services being supplied within a reasonable time.

Nothing in these terms and conditions (including, without limitation, clauses 11 or 13) should be interpreted as attempting to exclude, restrict or modify the application of any applicable provisions of the ACL, any liability of TradingCoders for failing to comply with these provisions of the ACL or the right of the Client to make a claim in respect of these guarantees or under any other provision of the ACL.

Subject to clause 12 and this clause 13, the maximum aggregate liability of TradingCoders for any Loss suffered by the Client in connection with each Agreement, including as a result of any breach by TradingCoders under the ACL, is limited, at the sole option and discretion of TradingCoders to:

• the resupply of the Services;
• the payment of the cost of having the Services resupplied; or
• the payment to the Client of an amount equivalent to the fees paid by the Client for the provision of the Services.

Without limiting the above, TradingCoders is not liable for any Consequential Loss (however caused) suffered or incurred by the Client in connection with an Agreement, including any loss to customers of the Client. This clause applies even if TradingCoders knew or ought to have known that the relevant Consequential Loss would be suffered.

The Client must indemnify and keep TradingCoders indemnified against any Loss suffered by TradingCoders which arises directly or indirectly out of:

• any breach of these terms and conditions by the Client including (without limitation) any breach in respect of which TradingCoders exercises a right to terminate;
• any negligent or unlawful acts of the Client or any of its personnel; or
• the provision of the Services by TradingCoders infringing or being alleged to infringe the intellectual property or other similar rights of any person;

except to the extent the relevant Loss arises as a direct result of any breach of an Agreement by TradingCoders or any negligent or unlawful act of TradingCoders or any of its personnel.

Unless expressly stated otherwise, all amounts specified in these terms and conditions have been calculated without regard to GST and do not include GST. TradingCoders may recover GST from the Client as an additional amount payable in respect of any fees or other sums payable by the Client under these terms and conditions.

16.1 Governing law

These terms and conditions will be construed and interpreted in accordance with the laws of the State of Victoria and each party submits to the non-exclusive jurisdiction of courts exercising jurisdiction in the State of Victoria including the Federal Court of Australia.

16.2 Assignment and sub contracting

Neither party may assign its rights or obligations under these terms and conditions without the prior written consent of the other party. TradingCoders may sub-contract the performance of its obligations under these terms and conditions or any part thereof without any requirement to obtain the Client's consent.

16.3 Entire agreement

These terms and conditions and the Proposal constitutes the entire agreement between the parties with respect to its subject matter and supersede all previous communications, representations, inducements, undertakings, agreements or arrangements.

16.4 Precedence

If there is any conflict between these terms and conditions and the Proposal, these terms and conditions will prevail to the extent of the inconsistency.

16.5 Force Majeure

If a party is prevented, hindered or delayed from performing its obligations under an Agreement by a Force Majeure Event, then as long as that situation continues, that party will be excused from performance of the obligation to the extent it is so prevented, hindered or delayed, and the time for performance of the obligation will be extended accordingly. If a party is affected by a Force Majeure Event it will immediately give the other party a notice of its occurrence and its effect or likely effect, and use all reasonable endeavours to minimise the effect of the Force Majeure Event and to bring it to an end. If the delay or failure to perform continues for more than 45 days, either party may terminate the Agreement by providing written notice of termination to the other party. This clause 16.5 does not relieve or suspend a party's obligation to pay money to the other party.

16.6 Waiver and variation

Subject to clause 3, these terms and conditions will not be varied except by a document in writing signed by the parties. No failure to exercise or delay in exercising any right given by or under these terms and conditions to a party constitutes a waiver and the party may still exercise that right in the future.

16.7 Severability

If any provision of these terms and conditions is invalid or unenforceable in any jurisdiction, it is to be read down, if possible, so as to be valid and enforceable and will otherwise be capable of being severed to the extent of the invalidity or unenforceability without affecting the remaining provisions of these terms and conditions or affecting the validity or enforceability of that provision in any other jurisdiction.

16.8 Survival

Clauses 5, 7, 9, 11, 12, 13, 14 and 16 survive termination of any Agreement.