Terms and Conditions

By accepting any Quotation provided, and therefore engaging Nuovo Group Pty Ltd (ACN 150 319 172), it is deemed that the Client has read and agreed to Nuovo’s terms and conditions as outlined below.

1. DEFINITIONS

‘Client Background IP’ means Intellectual Property owned by or licensed to the Client.

‘Client’ means a person/s, company or entity (and including any person acting on behalf of the Client) who engages Nuovo to perform the Services and/or purchases Products from Nuovo.

‘Client Resources’ means all equipment, materials, data information, and other items (including any Client Background IP) supplied by the Client to Nuovo.

‘Confidential Information’ means all know-how, Intellectual Property, business, financial, technical and other commercially valuable or sensitive information of a party in whatever form. This includes inventions (whether or not reduced to practice), trade secrets, methodologies, formulae, graphs, drawings, samples, devices, models, business plans, policies and any other materials or information which the party regards as confidential or of a commercially sensitive nature that may be in the possession of that party or their employees or officers. Confidential Information of a party does not include information which:
      (a) is in the public domain, through no fault of the other party; or
      (b) can be shown by contemporaneous records of the other party to have been known to the other party at the time it is received from a third party, without an obligation of confidentiality.

‘Deliverables’ means where relevant, and as a result of the performance by Nuovo of the Services, any end Product/s to be delivered by Nuovo to the Client, in the form and media specified in the Quotation.

‘GST’ means the tax imposed by the A New Tax System (Goods and Services Tax) Act 1999 (Cth) and related tax imposition Acts of the Commonwealth of Australia.

‘Intellectual Property’ means statutory and other proprietary rights in relation to intellectual property including but not limited to copyright, inventions, patents, registered and unregistered trade marks, registered and unregistered designs, circuit layouts and rights to require information to be kept confidential, and all other rights as defined by Article 2 of the Convention establishing the World Intellectual Property Organization of July 1967, and all rights to apply for any of the above.

‘Invoices’ means the tax invoice(s) provided by Nuovo to the Client in relation to the Services and/or Products.

‘Moral Rights’ means any moral rights or other analogous rights arising under any statute (including the Copyright Act 1968 (Cth) or any law of the Commonwealth of Australia), that exist or may come to exist anywhere in the world.

‘Nuovo’ means Nuovo Group Pty Ltd (ACN 150 319 172) and its successors and assigns.

‘Nuovo Background IP’ means Intellectual Property owned by Nuovo.

‘Price’ means the price payable by the Client to Nuovo for the Services and/or supply of the Products in accordance with clause 3 of these Terms & Conditions.

‘Products’ means goods supplied by Nuovo to the Client including any Deliverables, where applicable, and as described on the Quotations, Invoices, or any other forms provided by Nuovo to the Client, as amended from time to time.

‘Quotation’ means the quotation for Services and/or Products provided to the Client in writing by Nuovo.

‘Services’ means the service/s to be provided to the Client by Nuovo, as described on the Quotations, Invoices, or any other forms provided by Nuovo to the Client, as amended from time to time.

2. QUOTATIONS

1. All Quotations are provided by Nuovo free of charge and are valid for 30 days from the date of issue. Quotations that are not accepted within the 30 day time frame may be subject to amendment, at the discretion of Nuovo.
2. All Services which are to be performed by Nuovo and/or Products to be supplied by Nuovo to the Client are contained within the Quotation provided to the Client. Any additional Services or additional Products, which are not expressly provided for within Nuovo’s Quotation, will be charged to the Client at the price/rate as advised by Nuovo.
3. The Client acknowledges that the Quotation pricing includes Nuovo’s fees only. Any and all third party costs will be invoiced to the Client separately, unless specifically otherwise provided for in the Quotation.
4. Nuovo reserves the right to change the prices contained in the Quotation in the event that the Client’s order is varied.
5. All Quotations provided by Nuovo are priced in Australian Dollars, unless otherwise specified.
6. In the event that Nuovo is required to work outside normal business hours, the Client agrees to, and acknowledges that, it may incur additional charges.

3. INVOICES & PAYMENT

1. Nuovo will issue the Client an invoice for all Services provided by Nuovo to the Client and/or Products supplied by Nuovo to the Client.
2. In the event that Nuovo has to undertake additional Services and/or provide additional Products (as outlined in clause 2), the Client will be issued a further invoice in relation to the additional Services and/or Products have been provided.
3. The Price for the Services and/or Products shall be the price specified in the Invoice(s) or other forms provided by Nuovo to the Client.
4. The Client must pay each Invoice:
         a. by the date specified in the Invoice(s) or other form(s) provided by Nuovo to the Client; or
         b. if no such date is specified, within 30 days from the date of issue, unless otherwise agreed in writing between the parties.
   Accordingly, Nuovo requires that payment be made in full by such date.
5. At Nuovo’s sole discretion, the Client may be required to pay a deposit on the Price.
6. In the event of non-payment by the Client for any or all of the Services and/or Products provided within the payment terms specified, the Client undertakes and agrees that it will be liable for all costs that may be incurred by Nuovo as the result of the Client’s failure to pay Invoices by the date specified on the Invoice or if no such date is specified, within 30 days of date of issue. Nuovo may also charge interest on outstanding amounts, at its discretion, at the interest rate specified under the Penalty Interest Rates Act 1983 (Vic).
7. The Client must pay all money due to Nuovo without deduction or set off and must not withhold any payment on the grounds of alleged non-performance by Nuovo of its obligations or for any other reason.
8. If Nuovo is liable to pay GST on the supply of any Services and/or Products, the Client must pay to Nuovo the amount equivalent to the GST liability of Nuovo at the same time as the Price is paid for the Services and/or Products (unless the Price for the supply is expressed specifically to be GST inclusive).
9. Acceptance by Nuovo of payment of a sum less than the full sum due to Nuovo will not be an acknowledgement of payment in full and will not prejudice Nuovo’s rights to recover the balance due or to pursue any other remedy in respect of any unpaid money.
10. Receipt by Nuovo of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised.

4. DELIVERY OF PRODUCTS

1. At Nuovo’s sole discretion, delivery of Products ordered by the Client shall take place:
         (i) in the event that the Products are delivered by Nuovo or the Nuovo’s nominated carrier, when the Products are delivered to the Client’s nominated address for delivery; or
         (ii) in the event the Products are collected from Nuovo by the Client or the Client’s nominated carrier (which carrier shall be deemed to be the Client’s agent), when the Products are given to the Client or the Client’s nominated carrier by Nuovo.
2. Delivery of the Products to a third party nominated by the Client is deemed to be delivery to the Client. If a third party carrier damages the Products in transit, the Client is still required to pay the Price for the Products in accordance with clause 3 and all amounts owing to Nuovo for the particular Products and/or Services.
3. Unless otherwise specified in writing in an Invoice, or other form, the costs of delivery of the Products shall be in addition to the Price and the Client shall be responsible for these costs.
4. The Client shall make all arrangements necessary to take delivery of the Products. In the event that the Client is unable to take delivery of the Products as arranged then Nuovo shall be entitled to charge a reasonable fee for redelivery.
5. The failure of Nuovo to deliver shall not entitle the Client to treat these Terms & Conditions as repudiated.
6. Nuovo shall not be liable for any loss or damage suffered by the Client as a result of any failure by Nuovo to deliver the Products (or any of them) promptly or at all.
7. Nuovo may charge a storage fee if the Client orders Product(s) but does not want the Products delivered immediately upon becoming available.

5. RETENTION OF TITLE AND RISK

1. Following delivery, ownership of the Products shall not pass to the Client unless or until the Client has paid Nuovo the Price and all amounts owing to Nuovo for the particular Products and/or Services including delivery fees and all other associated costs. Until such time the Products shall remain the sole and absolute property of Nuovo as legal and beneficial owner.
2. All risk for the Products passes to the Client on delivery pursuant to clause 4(a) irrespective of whether ownership in the Products has passed to the Client.
3. Until Nuovo has received payment for the Price and all amounts owing to Nuovo for the particular Products and/or Services where applicable in full:
         (i) Nuovo shall have the right of stopping the Products in transit whether or not delivery has been made;
         (ii) where practicable, the Client must ensure that the Products are kept separate and identifiable;
         (iii) the Client must not charge the Products in any way or grant nor otherwise give any interest in the Products;
         (iv) Nuovo may give notice in writing requiring the Client to return the Products or any of them to Nuovo, and if the Client fails to return the Products within a reasonable time then Nuovo or Nuovo’s agent may enter upon and into land and premises owned, occupied or used by the Client where the Products are situated to take possession and remove the Products and Nuovo shall not be liable for any damage, injury or loss however caused resulting from the recovery of the Products;
         (v) the Client is only a bailee of the Products and the Client shall hold any proceeds from the sale or disposal of the Products on trust for Nuovo, either in a separate account or clearly identified in the books and records of the Client as being so held for Nuovo;
         (vi) if the Products are converted into other products Nuovo will be the owner of the end products; and
         (vii) Nuovo can issue proceedings to recover the Price of the Products sold and all amounts owing to Nuovo for the particular Products notwithstanding that ownership of the Products may not have passed to the Client.
4. The Client acknowledges that Nuovo will not accept responsibility for damage to Products after delivery pursuant to clause 4(a) and that Nuovo should ensure that they or their nominated carrier have sufficient insurance to cover the Products during transit including loading and unloading.
5. If any of the Products are damaged or destroyed following delivery but prior to ownership passing to the Client, Nuovo is entitled to receive all insurance proceeds payable for the Products. The production of these Terms & Conditions
   by Nuovo is sufficient evidence of the Nuovo’s rights to receive the insurance proceeds without the need for any person dealing with Nuovo to make further enquiries.
6. The Client acknowledges that:
         (i) these Terms & Conditions constitute a security agreement for the purposes of the Personal Property Securities Act 2009 (Cth) and regulations made under that Act (“PPSA”);
         (ii) the Client grants a security interest to Nuovo in the Products supplied to the Client and if required by Nuovo, over other assets of the Client pursuant to the security agreement for the purposes of the PPSA;
         (iii) Nuovo is entitled to and may register its security interest in the Products supplied to the Client and if required by Nuovo, over other assets of the Client in accordance with the PPSA;
         (iv) at Nuovo’s request, the Client must, at its cost, do anything considered by Nuovo in its absolute discretion to be necessary for the purposes of ensuring that Nuovo’s security interest is able to be registered on the Personal Property Securities Register and is enforceable, perfected and effective and able to be registered so that the security interest has the priority required by Nuovo; and
         (v) Nuovo is not required to give the Client any notice under the PPSA (including a notice of a verification statement) unless the notice is required by the PPSA and cannot be excluded.

6. DELIVERABLES

1. The Client acknowledges and agrees that, in the event it requires any corrections, changes or amendments to any Deliverables, where relevant, that it will provide such requirements to Nuovo in writing within one (1) day of receipt of each respective Deliverable, unless otherwise agreed to by Nuovo.
2. Each Quotation allows the Client, where relevant Services are being provided, one round of minor revisions to their Deliverables unless otherwise specified by Nuovo. Any revisions not nominated by the Client to Nuovo in the second round of minor revisions , or otherwise accounted for in the Quotation, are charged at an hourly rate as advised by Nuovo.
3. The Client acknowledges that:
         (i) whilst all care is taken by Nuovo in producing the Deliverables, the Client assumes and accepts liability for any and all errors or omissions;
         (ii) it is responsible for proof reading and identifying any errors or omissions in the Deliverables and associated documents, prior to final approval; and
         (iii) Deliverables shall not be released to the Client or third parties until final approval of the Deliverables has been provided to Nuovo in writing by the Client.

7. DEFECTS

1. If the Client believes that any Product delivered is defective at the date of delivery or that the Product delivered does not correspond with the Client’s order, the Client must notify Nuovo within seven (7) days of delivery.
2. Subject to clause 7(e) and unless otherwise required by law, for Products which Nuovo has agreed in writing are defective or were delivered in error, Nuovo’s liability is limited to either (at the Nuovo’s discretion):
         (i) replacement of the Products; or
         (ii) repair of the Products.
3. A Client must afford Nuovo an opportunity to inspect the Products within a reasonable time upon request to confirm the defect or error raised by the Client.
4. The Client is responsible for all costs associated with making a claim under this clause, unless Nuovo agrees otherwise in its sole discretion or unless otherwise required by law.
5. Clause 7(b) shall not cover any defect or damage which may be caused or partly caused by or arise through:
         (i) failure on the part of the Client to properly deal with any Products;
         (ii) failure on the part of the Client to follow any instructions or guidelines provided by the Nuovo;
         (iii) a use of the Products in a manner inconsistent with any normal uses or uses specified in the Invoice or other form for the Products;
         (iv) the continued use of any Products after any defect becomes apparent or would have become apparent to a reasonable user;
         (v) fair wear and tear; or
         (vi) a breach by the Client of these Terms and Conditions.
6. Nuovo shall not be liable to compensate the Client for any delay in either replacing or remedying the defect in the Product or in properly assessing the Client’s claim under this clause.
7. Unless otherwise required by the Australian Consumer Law, Nuovo does not provide a refund or replacement of a Product merely if the Client changes their mind.

8. USE OF CLIENT RESOURCES BY NUOVO

1. The Client undertakes and warrants that:
         (i) it is the owner of or otherwise has the authority of all required third parties to supply the Client Resources to Nuovo, where relevant, to use in performing the Services and/or supplying the Products;
         (ii) Nuovo has the right to request evidence of ownership in any and all Client Resources;
         (iii) it has complied with all laws in relation to the sourcing and use of the Client Resources; and
         (iv) Nuovo will not be required to obtain any licence of any Intellectual Property from a third party in order to complete any Deliverables as a result of the Client Resources provided to Nuovo by the Client. The Client undertakes
   that it is responsible for obtaining all necessary consents and approvals for the use of any third party Intellectual Property that it requires Nuovo to use in producing any Deliverables and indemnifies Nuovo from any
   claims, costs and losses that could be or are made against or incurred by Nuovo as a result of Nuovo using any such third party Intellectual Property.
         (v) it is responsible for ensuring that the Client Resources and any Deliverables are not contrary to law, including:
                     i. ensuring that they do not infringe the Intellectual Property rights of any person;
                     ii. ensuring that they are not by law defamatory of any person;
                     iii. ensuring that they are not obscene, blasphemous, offensive or discriminatory; and
                     iv. ensuring that they are not in breach of the Competitions and Consumer Act 2010 (Cth) or give rise to an action in passing off.
         (vi) the Client will use the Deliverables and/or Products at its own risk.
2. The Client expressly indemnifies Nuovo against any and all liability and loss arising out of the use of the Client Resources by Nuovo and/or any claim of infringement as a result of the Clients conduct and/or use of the Client Resources
   by Nuovo and/or any breach of these Terms & Conditions by the Client.

9. LIMITATION OF LIABILITY

1. Certain legislation, including the Australian Consumer Law may imply warranties or conditions or impose obligations upon Nuovo which cannot be excluded, restricted or modified, or cannot be excluded, restricted or modified except to
   a limited extent, and if so, then these Terms & Conditions must be read subject to these statutory provisions and any legislation which prohibits or restricts the exclusion, restriction or modification of any implied warranties, conditions,
   guarantees or obligations. If such legislation applies, to the extent to which Nuovo is entitled to do so, Nuovo limits its liability in respect of any claim under those provisions to:
         (i) in the case of goods, at Nuovo’s option:
                 i. the replacement of the goods or the supply of equivalent goods;
                 ii. the repair of the goods;
                 iii. the payment of the cost of replacing the goods or of acquiring equivalent goods; or
                 iv. the payment of the cost of having the goods repaired; and
         (ii) in the case of services, at Nuovo’s option:
                 i. the supplying of the services again; or
                 ii. the payment of the cost of having the services supplied again.
2. To the full extent permitted by law, Nuovo’s maximum aggregate liability for a breach by it of these Terms & Conditions, shall in no circumstances exceed the price paid for the Products and/ or Services by the Client.
3. To the full extent permitted by law, Nuovo shall not be liable under these Terms & Conditions for any Client’s or other third party’s loss of actual or anticipated income or profits, loss of contracts or for any special, indirect or consequential loss or damage of any kind caused by a breach of contract by Nuovo, whether or not such loss or damage is foreseeable, foreseen or known and whether or not Nuovo has been advised of or is aware that such damages may be incurred.
   
   

10. TERMINATION / CANCELLATION

1. Nuovo may reject or cancel any Quotation and/or any order for the supply of Services and/or Products within thirty (30) days of the date of any Quotation or at any time before the Products are delivered and/or the Services are supplied
   by giving written notice to the Client and on giving such notice Nuovo shall at its discretion:
         (i) repay to the Client any sums paid in respect of the Price and/or GST; and
         (ii) not be liable to the Client for any loss or damage howsoever arising from such rejection, cancellation or termination.
2. The Client may cancel an order for the supply of Services and/or Products by providing Nuovo with at least 10 business days’ notice in writing and in such a case:
         (i) Nuovo may retain any deposit paid by the Client in respect of the Products and/or Services;
         (ii) Nuovo will issue an Invoice in accordance with clause 10(d); and
         (iii) the Client shall be liable to Nuovo for any additional losses incurred by Nuovo as a result of the cancellation or termination (including, but not limited to, delivery costs, storage costs and any loss of profits).
3. Nuovo shall also be entitled to reject or cancel any Quotation and/or any order for the supply of Services and/or Products in the event that the Client becomes insolvent, bankrupt, goes into liquidation, has an administrator, official manager, receiver or receiver and manager appointed, enters into a scheme of arrangement with its creditors or any class of them or is subject to any similar events or is in breach of these Terms & Conditions or is unable to pay its invoices when due in accordance with these Terms & Conditions.
4. In the event of any cancellation pursuant to clause 10(a), (b) or (c) or the Client no longer wishes to proceed with the Quotation, Nuovo will issue an Invoice for all work completed up to the date of cancellation, rejection or termination,
   and payment of this Invoice is required by the Client in accordance with clause 3.

11. INTELLECTUAL PROPERTY RIGHTS

1. The Client acknowledges that all Nuovo Background IP and all concepts, materials, Intellectual Property and designs created, conceived, developed or reduced to practice in the performance of the Services or supply of the Products (“Developed IP”) remains the sole property of Nuovo. The Client acknowledges that it acquires no right, title or interest in or to the Nuovo Background IP or the Developed IP by virtue of these Terms & Conditions or the disclosure or use of the Nuovo Background IP in the course of the performance of the Services and/or supply of Products other than as expressly set out in these Terms & Conditions or unless otherwise agreed to by Nuovo.
2. If the Client requests, Nuovo’s may, in its sole discretion and only upon completion a Deliverable as well as payment of all outstanding Invoices for a Client, grant a non-exclusive, royalty free, non-transferable licence to the Client of the copyright in the Developed IP, limited to the purpose, territory and media specified by Nuovo. This is subject to the consent of Nuovo and may require an additional fee to be paid to Nuovo, at its discretion.
3. The Client grants to Nuovo, or shall procure where required from a third party, a non-exclusive, royalty-free, non-transferable licence for Nuovo to use the Client Background IP to the extent necessary and for the sole purpose of the performance of the Services, supply of the Products and/or as specified under these Terms & Conditions.
4. The Client consents to Nuovo’s use of the Deliverables in and on Nuovo’s portfolio, website, design periodicals, social media accounts and other media or exhibits unless otherwise discussed and agreed to by the parties prior to commencement of the Services.
5. The Client must not directly or indirectly engage in any conduct which may endanger the capacity of any Developed IP to be protected or challenge its ownership or validity
6. The Client unconditionally and irrevocably consents to Nuovo, its sub-licensees, assignees and nominees materially altering any copyright works forming part of the Client Background IP and dealing with such works without attributing authorship and, to the extent permitted by law, the Client:
         (i) waives any Moral Rights it, he or she may have in the Client Background IP; and
         (ii) consents to and, if required by Nuovo, shall also immediately procure the consent in writing of any other party to any activity, use, treatment, alienation, destruction or attribution, in respect of the Client Background IP, including the performance of which would otherwise infringe such person’s Moral Rights in the Client Background IP.

12. CONFIDENTIAL INFORMATION

1. Nuovo may use and disclose the Clients Background IP as is necessary for the performance, development or supply of the Services and/or Products in accordance with these Terms & Conditions.
2. The Client undertakes to:
         (i) not use, and ensure that its employees, officers and agents do not use, any Confidential Information of Nuovo for any purpose other than compliance with its obligations under these Terms & Conditions;
         (ii) take all action necessary to maintain the confidential nature of the Confidential Information of Nuovo;
         (iii) not disclose any of the Confidential Information of Nuovo to any person other than those of its employees, officers and agents, who need to have access to that Confidential Information for the purpose of the Client complying with its obligations under these Terms & Conditions, and who are bound by an enforceable obligation of confidentiality; and
         (iv) destroy all documents and other materials in whatever form in its possession, power or control which contain or refer to any Confidential Information of Nuovo, as may be required or requested by Nuovo.
3. The Client acknowledges that Nuovo would be irreparably harmed by any actual or threatened breach of this clause 12, and that monetary damages would be insufficient to remedy such actual or threatened breach.
4. Nuovo agrees to keep confidential any confidential information disclosed to it by the Client whilst performing the Services and/or supplying the Products, unless it is otherwise in the public domain or already known to it prior to disclosure or disclosed with the Client’s consent or Nuovo is compelled by law to disclose it.

13. GENERAL

1. The Client shall sign and, execute all such further documents and do all such acts, matters and things as shall be necessary or desirable to give full effect to these Terms & Conditions.
2. The Client shall not assign or purport to assign any right under these Terms & Conditions without the prior written consent of Nuovo. Nuovo may assign or purport to assign any right under these Terms & Conditions without the prior consent of the Client.
3. These Terms & Conditions (together with the Quotation and Invoice or other forms or documents provided by Nuovo to the Client) form the entire agreement between Nuovo and the Client.
4. Nuovo reserves the right to amend these Terms & Conditions at its discretion.
5. The waiver of any party of a breach of a provision of these Terms & Conditions will not be deemed a waiver of all or part of that provision or of any other provision or of the right of that party to avail itself of its rights subsequently and Any waiver of a breach of these Terms & Conditions must be in writing signed by the party granting the waiver, and will be effective only to the extent specifically set out in that waiver
6. The parties agree and acknowledge that each provision is and will be deemed to be severable and independent and if all or any part of any provision is judged invalid or unenforceable in all the circumstances, it will be deemed to be deleted and will not affect the validity or enforceability of the remaining provisions.
7. Nuovo shall not be liable for any default of these Terms & Conditions or the failure to provide any Services or Products due to any event of force majeure including but not limited to war, terrorism, strike, lock-out, industrial action, fire, flood, drought, storm or other event beyond its reasonable control.
8. The parties agree and acknowledge that these Terms & Conditions are governed by and to be construed in accordance with the laws of the State of Victoria, Australia and each party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the Courts of Victoria, Australia, and Courts entitled to hear appeals from these Courts.