Client Service Agreement

01 How this agreement applies

1. This Client Service Agreement (Agreement) sets out the standard terms on which Xiphirium provides software services. It applies to every engagement between Xiphirium and a Client unless Xiphirium and the Client have signed a separate written agreement that expressly replaces it.
2. Each engagement is also defined by a Proposal — a written proposal, statement of work, scope document or quote issued by Xiphirium and accepted by the Client. The Proposal and this Agreement are to be read together as one contract.
3. If there is any inconsistency, the documents take precedence in this order: (a) a signed master agreement, if any; (b) the Proposal; and (c) this Agreement. A Proposal varies this Agreement only for the engagement it relates to, and only where it does so expressly.
4. This Agreement does not govern mere use of the xiphirium.com website — that is governed by the Website Terms of Use.

02 Definitions and interpretation

Xiphirium / we / us / our

Xirophi Pty Ltd (ACN 697 534 393, ABN 47 697 534 393), trading as Xiphirium.

Client / you / your

The person or entity that engages Xiphirium to provide the Services, as identified in the Proposal.

Services

The software development, integration, consulting and related services described in the Proposal.

Deliverables

The specific work products Xiphirium agrees in the Proposal to create and deliver to the Client.

Fees

The amounts payable by the Client for the Services, as set out in the Proposal.

Background IP

All intellectual property, code, libraries, frameworks, tools, templates, methods and know-how that exist independently of the engagement, or that Xiphirium develops or acquires outside it — including anything Xiphirium creates that is general and not specific to the Client.

Client Materials

Any content, data, code, credentials, branding, specifications or other material the Client provides, or directs Xiphirium to use, for the Services.

Confidential Information

Non-public information disclosed by one party to the other that is marked confidential or that a reasonable person would understand to be confidential, including the terms of the Proposal.

Intellectual Property Rights

All rights in copyright, designs, trade marks, patents, know-how and other intellectual property, whether registered or unregistered, anywhere in the world.

Consequential Loss

Loss of profit, revenue, anticipated savings, business, goodwill or opportunity; loss or corruption of data; business interruption; and any indirect, special or consequential loss — in each case however arising.

Australian Consumer Law

Schedule 2 to the Competition and Consumer Act 2010 (Cth).

In this Agreement, headings are for convenience only; the singular includes the plural; “including” and “such as” are not words of limitation; and a reference to a party includes its permitted successors and assigns.

03 Formation of the engagement

1. An enquiry, brief submission or indicative estimate (including any output of the “Spec my project” feature) does not create a contract and does not oblige Xiphirium to provide any Services.
2. A binding engagement is formed on the earliest of: (a) the Client signing or confirming acceptance of a Proposal in writing; (b) the Client paying a deposit or invoice referable to the Services; or (c) Xiphirium commencing the Services at the Client’s request.
3. On formation, this Agreement and the relevant Proposal apply to the engagement, whether or not a separate document is signed.

04 Scope of services

1. Xiphirium will provide the Services described in the Proposal with due care and skill, and will use reasonable endeavours to meet any milestones or estimated timeframes stated in it.
2. The Proposal defines what is in scope. Anything not expressly described in the Proposal is out of scope, including any assumption, dependency, integration, platform, environment or feature not listed. Items recorded as “out of scope” or “future” are excluded.
3. Estimated timeframes are estimates made in good faith on the information available; they are not guarantees unless the Proposal expressly states a fixed date as a firm commitment.
4. Xiphirium may determine the technical means, tools, architecture and methods used to perform the Services, acting reasonably and consistently with the Proposal.

05 Changes and variations

1. Either party may request a change to the scope, Deliverables, timeline or Fees. A change takes effect only when agreed in writing (including by email) as a Variation.
2. Xiphirium will assess each change request and may provide a Variation setting out the adjustment to scope, Fees and timeline. Xiphirium is not obliged to start work on a change until the Variation is agreed.
3. If the Client asks Xiphirium to begin out-of-scope work before a Variation is agreed, that work is chargeable at Xiphirium’s then-current rates, and the Client is taken to have accepted the Variation by allowing the work to proceed.

06 Fees, invoicing and payment

1. The Client must pay the Fees set out in the Proposal. Unless the Proposal states otherwise, fixed-scope engagements require a deposit of 50% of the Fees before work begins, with the balance invoiced on or before delivery.
2. Invoices are payable within 7 days of the invoice date, unless the Proposal states otherwise. Time for payment is of the essence.
3. Unless stated otherwise, Fees are exclusive of GST. If GST applies to a supply under this Agreement, the Client must pay the GST amount in addition to the Fees on receipt of a valid tax invoice.
4. Fees are exclusive of third-party costs — such as hosting, domains, paid APIs, software licences and subscriptions. Unless the Proposal includes them, the Client is responsible for those costs and should hold the relevant accounts in its own name.
5. If an invoice is not paid when due, Xiphirium may, without limiting its other rights: (a) charge interest on the overdue amount at 2% above the Reserve Bank of Australia cash rate, accruing daily; (b) suspend the Services and withhold Deliverables until payment is made; and (c) recover reasonable costs of recovering the debt.
6. The Client must pay all invoices in full without set-off, deduction or counterclaim, except as required by law.
7. Deposits and Fees for Services already performed are non-refundable, except to the extent a refund is required by the Australian Consumer Law or other applicable law.

07 Client responsibilities

1. The Client must, in a timely manner: (a) provide accurate and complete instructions, information and Client Materials; (b) provide any access, accounts, credentials and environments Xiphirium reasonably needs; (c) make available a person with authority to give directions, approvals and feedback; and (d) review and respond to requests for decisions, feedback or approvals.
2. The Client is responsible for the accuracy, legality and quality of Client Materials and of its own instructions and decisions.
3. The Client must maintain its own backups of its data and systems, and is responsible for the security of credentials it holds or controls.
4. Xiphirium may rely on the Client’s instructions, approvals and Client Materials without independent verification.

08 Timelines and delays

1. Timeframes assume the Client meets its responsibilities under section 7. If the Client’s delay, late feedback, incomplete information or unavailability affects the schedule, timeframes are extended accordingly.
2. Xiphirium is not liable for any failure or delay in performing the Services to the extent caused by the Client, by Client Materials, by third parties the Client is responsible for, or by a Force Majeure Event.
3. If the Client suspends or pauses an engagement, Xiphirium may reschedule the remaining Services around its other commitments, and may charge for resourcing reasonably reserved for the engagement.

09 Intellectual property

1. Background IP. Each party retains ownership of its own Background IP. Nothing in this Agreement transfers ownership of Background IP.
2. Assignment of Deliverables on payment. On receipt by Xiphirium of payment in full of all Fees due for an engagement, Xiphirium assigns to the Client all Intellectual Property Rights in the Deliverables created specifically for the Client under that engagement. Until payment in full is received, all Intellectual Property Rights in the Deliverables remain with Xiphirium, and the Client has no licence to use, deploy or commercialise them.
3. Licence to Background IP. To the extent any Xiphirium Background IP is incorporated into the Deliverables, Xiphirium grants the Client, on payment in full, a perpetual, worldwide, non-exclusive, royalty-free licence to use that Background IP solely as part of and for the purpose of operating the Deliverables. The Client may not separately extract, license or commercialise the Background IP.
4. Xiphirium’s retained rights. Xiphirium may continue to use the general skills, knowledge, experience, techniques and know-how acquired in performing the Services, and may develop similar work for other clients, provided it does not use the Client’s Confidential Information or infringe the Client’s Intellectual Property Rights.
5. Third-party and open-source components. The Deliverables may include third-party or open-source components licensed under their own terms. Those components are not owned by Xiphirium or assigned to the Client; the Client’s use of them is governed by their respective licences. Xiphirium will use reasonable endeavours to use components under permissive licences.
6. Client Materials. Client Materials remain the property of the Client or its licensors. The Client grants Xiphirium a non-exclusive licence to use, copy and modify Client Materials to the extent needed to perform the Services.
7. Portfolio rights. Xiphirium may identify the Client as a client and may describe and display non-confidential aspects of the work in its portfolio, case studies and marketing. The Client may withdraw this permission for specific material by notice in writing, and Xiphirium will not disclose the Client’s Confidential Information.

10 Confidentiality

1. Each party must keep the other party’s Confidential Information confidential, use it only for the purpose of the engagement, and protect it with reasonable care.
2. Confidential Information does not include information that: (a) is or becomes public other than through a breach of this Agreement; (b) was already known to the receiving party free of any confidentiality obligation; (c) is independently developed without reference to the disclosing party’s information; or (d) is rightfully received from a third party without restriction.
3. A party may disclose Confidential Information to the extent required by law or a regulator, or to its professional advisers under a duty of confidence.
4. This section survives the end of the engagement.

11 Client warranties and indemnity

1. The Client warrants that: (a) it has the right to provide the Client Materials and to authorise their use for the Services; (b) the Client Materials, and Xiphirium’s use of them as directed, do not and will not infringe any third party’s Intellectual Property Rights or other rights, or breach any law; and (c) it has the authority to enter into this Agreement.
2. The Client indemnifies Xiphirium and its personnel against all liability, loss, damage and reasonable costs (including legal costs) arising out of or in connection with: (a) the Client Materials, or any claim that they or their use as directed infringe or misuse a third party’s rights; (b) the Client’s instructions or decisions; (c) the Client’s breach of this Agreement; (d) the Client’s negligent, unlawful or wrongful acts or omissions; and (e) the Client’s use, deployment or operation of the Deliverables other than as contemplated by the Proposal.
3. Each indemnity in this Agreement is reduced proportionally to the extent the relevant liability, loss, damage or cost was caused or contributed to by Xiphirium.

12 Our warranties and defect correction

1. Xiphirium warrants that it will perform the Services with due care and skill, and that the Deliverables will, at the time of delivery, materially conform to the description in the Proposal.
2. Defect-correction window. If, within 30 days of delivery of a Deliverable, the Client notifies Xiphirium in writing of a reproducible defect that causes the Deliverable to fail to materially conform to the Proposal, Xiphirium will, at no further charge, use reasonable endeavours to correct that defect. This is the Client’s exclusive remedy for such a defect, in addition to any Non-excludable Right.
3. The defect-correction window does not cover: (a) changes the Client or a third party makes to the Deliverables after delivery; (b) faults in Client Materials, third-party platforms, services or components, or the Client’s environment; (c) use of the Deliverables other than as contemplated by the Proposal; (d) new features, enhancements or change requests, which are Variations under section 5; or (e) issues arising after delivery from changes to third-party platforms or APIs.
4. Beyond the express warranties in this section and any Non-excludable Right, and to the maximum extent permitted by law, Xiphirium gives no warranties and all other warranties, conditions and guarantees are excluded.

13 Disclaimers

To the maximum extent permitted by law, and subject always to section 14.1:

1. Xiphirium does not warrant that the Deliverables will be error-free, uninterrupted, free of vulnerabilities, or secure against every threat. Software of any complexity may contain defects, and security is a continuing practice, not a one-time guarantee.
2. The Services and Deliverables rely on third-party platforms, services, APIs and components (such as hosting, payment, database and AI providers) that are outside Xiphirium’s control. Xiphirium is not responsible for the acts, omissions, availability, pricing, security or changes of any third party, and is not liable for any effect on the Deliverables caused by a change a third party makes after delivery.
3. Where the Services involve AI-assisted development or AI features, Xiphirium reviews such work with professional care, but does not warrant that AI-generated or AI-assisted output is complete, accurate or fit for an undisclosed purpose.
4. Xiphirium is not responsible for the ongoing maintenance, monitoring, hosting, security patching or operation of the Deliverables after delivery unless a maintenance or retainer engagement is separately agreed.
5. Xiphirium does not provide legal, financial, tax, accounting or regulatory advice. The Client is responsible for ensuring its use of the Deliverables complies with all laws applicable to its business.

14 Limitation of liability

1. Non-excludable rights prevail. Nothing in this Agreement excludes, restricts or modifies any guarantee, right, warranty or remedy conferred by the Australian Consumer Law or any other law that cannot lawfully be excluded, restricted or modified (a Non-excludable Right). All other provisions of this Agreement are read subject to this clause.
2. Limitation where permitted. Where Xiphirium is liable for a failure to comply with a Non-excludable Right in relation to services, and the law permits Xiphirium to limit that liability, Xiphirium’s liability for that failure is limited — at Xiphirium’s option — to supplying the relevant Services again, or paying the reasonable cost of having them supplied again.
3. Exclusion of Consequential Loss. Subject to clause 14.1, and to the maximum extent permitted by law, Xiphirium is not liable to the Client for any Consequential Loss arising out of or in connection with this Agreement, the Services or the Deliverables, however arising, including in contract, tort (including negligence), under statute or otherwise.
4. Aggregate cap. Subject to clauses 14.1 and 14.2, and to the maximum extent permitted by law, Xiphirium’s total aggregate liability arising out of or in connection with this Agreement, the Services and the Deliverables — whether in contract, tort (including negligence), under statute or otherwise — is limited to the total Fees paid by the Client to Xiphirium for the engagement giving rise to the liability in the six (6) months immediately before the event giving rise to the liability.
5. Proportional reduction. Xiphirium’s liability is reduced proportionally to the extent that the relevant liability, loss or damage was caused or contributed to by the Client, the Client Materials, the Client’s instructions, or any person for whom the Client is responsible.
6. Time limit on claims. To the maximum extent permitted by law, the Client must commence any claim against Xiphirium arising out of or in connection with this Agreement within twelve (12) months after the Client first became aware, or ought reasonably to have become aware, of the facts giving rise to the claim. The Client releases and waives any claim not commenced within that period, to the extent permitted by law.
7. Mutual benefit. The limitations and exclusions in this section apply for the benefit of Xiphirium and its personnel and subcontractors, and reflect the agreed allocation of risk on which the Fees are based.

15 Privacy and data protection

1. Each party will comply with the Privacy Act 1988 (Cth) and any other applicable privacy or data-protection law in connection with the engagement.
2. Xiphirium handles personal information it collects in accordance with its Privacy Policy.
3. Where Xiphirium handles personal information on the Client’s behalf within systems built or operated for the Client, it will do so only as reasonably necessary for the Services and on the Client’s reasonable instructions. As between the parties, the Client is responsible for the lawfulness of the personal information it provides and of the collection and use it directs.
4. The Client must not provide Xiphirium with personal information, or with production data containing personal information, beyond what is reasonably necessary for the Services, and should provide de-identified or test data where practicable.

16 Term, suspension and termination

1. This Agreement applies from the formation of an engagement until the Services are completed or the engagement is terminated.
2. Termination for convenience. Either party may terminate an engagement on 14 days’ written notice (or, for a retainer, as set out in section 17).
3. Termination for cause. Either party may terminate immediately by written notice if the other party: (a) commits a material breach that is not remedied within 14 days of notice; (b) commits a material breach incapable of remedy; or (c) becomes insolvent, bankrupt or subject to external administration.
4. Suspension. Xiphirium may suspend the Services if the Client fails to pay an amount when due or is in material breach, until the breach is remedied.
5. Effect of termination. On termination: (a) the Client must pay for all Services performed and costs reasonably committed up to the termination date, including for work in progress; (b) Xiphirium will deliver completed and paid-for Deliverables, and intellectual property assigns only on payment in full under section 9; (c) each party returns or destroys the other’s Confidential Information on request; and (d) accrued rights and obligations are unaffected.
6. Sections that by their nature should survive — including sections 9, 10, 11, 13, 14, 15, 22 and 23 — survive termination.

17 Retainer engagements

1. A retainer engagement provides an agreed allocation of Xiphirium’s capacity (for example, two days per week) for a recurring monthly Fee, billed monthly in advance.
2. Either party may end a retainer on 30 days’ written notice. The retainer Fee remains payable through the notice period.
3. Unused capacity in a billing period does not roll over to a later period and is not refundable, unless the Proposal expressly states otherwise.
4. Retainer work is performed under this Agreement. Work plainly outside the retainer’s purpose may be treated as a separate engagement or Variation.

18 Force majeure

Neither party is liable for any failure or delay in performing its obligations (other than an obligation to pay money) to the extent caused by an event beyond its reasonable control (a Force Majeure Event) — including natural disaster, fire, flood, pandemic or epidemic, war, civil unrest, industrial action, government action, failure of utilities or telecommunications, and large-scale failure or outage of third-party infrastructure or platforms. The affected party must notify the other and use reasonable endeavours to mitigate. If a Force Majeure Event continues for more than 30 days, either party may terminate the affected engagement on written notice.

19 Relationship of the parties

Xiphirium provides the Services as an independent contractor. Nothing in this Agreement creates a partnership, joint venture, agency, or employment relationship between the parties. Neither party may bind the other or hold itself out as able to do so. Each party is responsible for its own taxes, insurances and statutory obligations.

20 Subcontracting

Xiphirium may engage subcontractors or use third-party services and tools to perform parts of the Services. Xiphirium remains responsible to the Client for the performance of the Services. The limitations and exclusions of liability in this Agreement apply to the benefit of Xiphirium’s subcontractors as well as Xiphirium.

21 Notices

Notices under this Agreement must be in writing and sent to the email address each party uses for the engagement (for Xiphirium, hi@xiphirium.com). A notice is taken to be received when sent, unless the sender receives an automated delivery-failure message. Routine project communication may be conducted by email and ordinary collaboration tools.

22 Dispute resolution

1. If a dispute arises, the parties must first try to resolve it in good faith: the party raising the dispute gives written notice describing it, and senior representatives of each party confer within 14 days.
2. If the dispute is not resolved within 30 days of that notice, either party may pursue its other rights and remedies. Nothing in this section prevents a party from seeking urgent injunctive or interlocutory relief, or from recovering an undisputed debt.
3. The parties must continue performing their obligations (including payment of undisputed amounts) while a dispute is being resolved.

23 General

1. Governing law. This Agreement is governed by the laws of New South Wales, Australia. The parties submit to the non-exclusive jurisdiction of the courts of New South Wales.
2. Entire agreement. This Agreement and the relevant Proposal are the entire agreement between the parties about their subject matter, and supersede all prior discussions, representations and understandings.
3. Variation. This Agreement may be varied only in writing. Xiphirium may update this standard Agreement from time to time; the version in force for an engagement is the version current when that engagement is formed, and the current version is published at xiphirium.com/agreement.
4. Severability. If a provision of this Agreement is invalid or unenforceable, it is read down or severed to the minimum extent necessary, and the remaining provisions continue in full force.
5. No waiver. A right is not waived by any failure or delay in exercising it. A waiver is effective only if given in writing.
6. Assignment. The Client may not assign or novate this Agreement without Xiphirium’s written consent. Xiphirium may assign or novate it to a successor of its business on notice.
7. Counterparts and electronic acceptance. A Proposal may be accepted electronically, including by email confirmation or payment, and acceptance in that manner binds the Client to this Agreement.
8. Rights cumulative. The rights and remedies in this Agreement are in addition to, and do not exclude, any rights or remedies provided by law.

24 Contact

For any question about this Agreement, or to discuss an engagement:

• Email: hi@xiphirium.com
• Entity: Xirophi Pty Ltd (ACN 697 534 393, ABN 47 697 534 393) trading as Xiphirium
• Location: Sydney, New South Wales, Australia