Terms of service.

TERMS AND CONDITIONS OF TRADE

The Customer wishes to engage the Supplier to provide the Services. The Supplier has agreed to provide the Services on the Terms set out in this document. The Customer acknowledges and agrees that they have read, understood, and unconditionally accept, the following Terms. The following Terms constitute a legally binding agreement between the Supplier and the Customer.

1. INTERPRETATION OF THIS AGREEMENT

In the interpretation of this Agreement:

  1. references to any statutory instruments, agreements or documents includes any changes to those documents;

  2. the Customer must perform its obligations by reference to the dates and times of the State or Territory as directed by the Supplier; 

  3. if the Supplier is required to do a thing on a Saturday, Sunday, or Public Holiday, that thing may be done on the next business day;

  4. obligations under this Agreement affecting more than one party bind them jointly and each of them severally; 

  5. a reference to the Supplier or the Customer binds the administrators, executors, assigns and transferees of each party;

  6. “Agreement” means the Quote, these Terms, any variations to these Terms, and any documents or schedules referenced in, or incorporated into, this Agreement, as may be amended from time to time; 

  7. “Customer” means the person or legal entity that signs or accepts the Quote for or on behalf of the Customer, including any person or legal entity acting on behalf of the Customer as its agent;

  8. “Fees” means the fees, costs, and charges, payable by the Customer to the Supplier as set out in the Quote including any varied or additional Fees payable by the Customer to the Supplier under this Agreement;

  9. “Quote” means the written proposal, letter, email, text message, publication (whether physical or online) or anything in writing to which these Terms are attached, enclosed with, linked to, referenced in, intended to apply to, or in any way made accessible to the Customer, as provided by the Supplier to the Customer describing the Services, the Fees and any special conditions or details applicable to the engagement of the Supplier by the Customer under this Agreement;

  10. “Services” means the goods and/or services to be provided by the Supplier to the Customer under this Agreement including any varied or additional Services to be provided by the Supplier to the Customer under this Agreement as agreed in writing between the parties;

  11. “Supplier” means the person or legal entity that is to supply the Services, as specified in the Quote, or any person or legal entity acting on behalf of and with the authority of the Supplier as its agent; and

  12. “Terms” means these terms and conditions.

2. QUOTE AND ACCEPTANCE

  1. The Quote will remain open for acceptance by the Customer until the expiration date specified in the Quote or as otherwise notified by the Supplier to the Customer. The Quote will automatically lapse on the first day following the expiration date set by the Supplier. A legally binding and enforceable Agreement comes into existence between the parties upon the Customer accepting the Quote. Any instructions provided by the Customer for the supply of the Services following the Quote will be deemed acceptance by the Customer of this Agreement, and constitute a legally binding and enforceable Agreement between the parties.

  2. Any person or entity signing on behalf of the Customer covenants that they are duly authorised to sign the Agreement and accept personal responsibility for the performance of this Agreement. If the Customer enters into this Agreement as a trustee, the trustee covenants that the Agreement is binding on the trustee (personally and in its capacity as trustee) including the trustee's successors as trustee of the trust fund. 

  3. The Customer authorises the Supplier to carry out credit checks and credit inquiries into or against the Customer.

4. INVOICES

  1. The Supplier may issue an invoice for the Fees at any time. The Customer must pay the invoice into the bank account nominated by the Supplier within 7 days of the invoice date, or within any shorter or other period of time imposed by the invoice. Invoices may be settled by direct deposit, direct debit (or credit card payment, which may incur a surcharge of up to 2.5% or more of the Fees that may be payable).

  2. The Fees (or any part thereof) will, at the sole, and absolute, election of the Supplier, be payable by the Customer to the Supplier on any one or more of the following basis, unless prohibited by law: 

  1. prior to, or at the completion of, the Services; or

  2. for the amounts and at the times specified in the invoices, the Quote, any other writing or as otherwise imposed by the Supplier. 

  1. At the sole discretion of the Supplier, the Customer may be required to pay a deposit to the Supplier, unless prohibited by law. 

3. FEES

  1. The Fees payable by the Customer to the Supplier are set out in the Quote. Time is of the essence for the payment of the Fees. The Fees do not include any travel, accommodation, freight, packaging, postage or any other costs not expressly specified in the Quote that may relate to, or arise in the course of, providing the Services. The Supplier reserves the right to increase it Fees each year as the Supplier thinks fit.

  2. The Supplier will notify the Customer of any variation to the Fees. 

  3. If the Supplier makes a taxable supply under this Agreement, the Customer will pay the Supplier any goods and services tax payable in respect of that supply in addition to the Fees payable for the Services.

  4. The Supplier reserves the right to revise the Fees either prior to the provision (or following the commencement) of the Services.

5. OUTSTANDING FEES

  1. Interest on overdue invoices shall accrue on the terms if any set out in the Quote or in the invoice. If the payment of any invoice is dishonoured, the Customer is liable for any dishonour fees.

  2. If any Fees are outstanding to the Supplier, the Supplier may, in its sole, absolute and unfettered discretion, take any one or more of the following actions against the Customer:

  • charge a late payment fee (including any interest charges);

  • charge any additional Fees incurred by the Supplier; and

  • suspend or terminate the provision of any or all of the Services.

    3. The Customer agrees to pay the Supplier, immediately on demand, all costs relating to the recovery of any Fees including without limitation any debt collection and legal costs on a full indemnity basis. Without limiting the rights of the Supplier, the Customer authorises the Supplier to charge any amounts owing by the Customer to any credit card or account details provided to the Supplier by the Customer.

    4. The Customer shall not be entitled to set off against or deduct from the Fees or any other monies owing to the Supplier any sums owed or claimed to be owed to the Customer by the Supplier. 

7. LIMITATION OF LIABILITY

(A) Subject to any rights or remedies of the Customer under the ACL, the Customer acknowledges and agrees that the Supplier (including their directors, officers, shareholders, employees, agents, contractors, any related body corporate, entity or person) are not liable to the Customer (or any of their employees, contractors, agents, any related person or entity), to the greatest extent permitted by law, for (without limitation):

(i) any direct, indirect, special, consequential or exemplary damages, or any losses, harm or injuries, of any nature or kind whatsoever;

(ii) any loss of profits, loss of revenue, loss of production, loss of business opportunity, loss of economic advantage, downtime, loss of use of any equipment, system or facility, or loss of reputation; 

(iii) any legal or other costs, charges, expenses, or liabilities, whatsoever, 

which the Customer incurs, suffers or pays, directly or indirectly, whether now or in the future, either themselves, or to any third person or entity, as a result of any action, demand, claim, proceeding or litigation arising from, or connected with, without limitation, any breaches of this Agreement, any breaches of the law, regulations or standards imposed by any Commonwealth, state or local government or authority, any personal injuries or deaths, any damage to property, as a result of any lawful or unlawful acts, omissions, breaches, fault or negligence of the Supplier (or of their directors, officers, shareholders, employees, agents, contractors, any related person or entity).

(B) If the Supplier is nonetheless found to be liable to the Customer (under any legal theory), the Customer unconditionally agrees that the aggregate liability of the Supplier to the Customer is strictly limited to the amount of any Fees then paid by the Customer to the Supplier under the Agreement. 

6. COMMENCEMENT, COMPLETION AND DELAY

(A) This Agreement commences on the date that the Quote is accepted by the Customer. The Agreement will continue in full force and effect until the completion of the Services by the Supplier, unless the Agreement is terminated earlier in accordance with the terms of this Agreement. 

(B) If the Supplier knows or suspects that additional time is required to complete the Services, the Supplier is entitled to charge additional Fees and extend any estimated date of completion by a reasonable period of time (as determined in the sole, absolute, and unfettered, opinion of the Supplier) in any one of the following circumstances: 

  • the Supplier must spend additional time completing the Services by reason of any variations of the Agreement; 

  • the completion of the Services is delayed by any act or omission of the Customer or any other third party; or

  • the Supplier cannot complete the Services by the estimated date of completion for reasons arising from force majeure events or any event beyond the control of the Supplier.

    (C) The Supplier will incur no liability to the Customer or any third party for any delays arising under clause 6(b) above or for any delays whatsoever where the Supplier is not responsible for the delays. 

8. INDEMNITY

The Customer indemnifies the Supplier (including their directors, officers, shareholders, employees, agents, contractors and/or any related body corporate, entity or person) against, without limitation:

(a) any direct, indirect, special, consequential or exemplary damages, or any losses, harm or injuries, of any nature or kind whatsoever;

(b) any loss of profits, loss of revenue, loss of production, loss of business opportunity, loss of economic advantage, downtime, loss of use of any equipment, installation, system or facility, or loss of reputation;

(c) any legal costs and outlays on a full solicitor and client basis;

(d) any other costs, charges, expenses, or liabilities, whatsoever,

which the Supplier incurs, suffers or pays, directly or indirectly, whether now or in the future, either themselves, or to any third person or entity, in respect of any action, demand, claim, proceeding or litigation arising from, relating to, or connected with, without limitation, any breaches of this Agreement, any breaches of the law, regulations, rules or standards imposed by any Commonwealth, state or local government or authority, any personal injuries or deaths, any damage to tangible or intangible property, as a result of any lawful or unlawful acts, omissions, breaches, fault or negligence whatsoever, and howsoever arising, of the Customer (or of any of their employees, contractors, agents, any related person or entity, or any person or entity undertaking any act, or omission, for, or on behalf of, the Customer). 

9. INSPECTIONS

The Customer must inspect the Services on delivery or completion and within 3 days thereof (with time being of the essence), must notify the Supplier in writing of any alleged defects or failures of the Supplier to comply with this Agreement. The Customer must give the Supplier an opportunity to inspect any impugned Services. If the Customer fails to comply with this subclause, the Services are deemed to be free of any defects or failures. 

10. TERMINATION

(A) The Supplier may terminate this Agreement at any time prior to providing the Services by giving notice to the Customer. The Supplier is not liable to the Customer or any third party for any harm, loss or damage arising from, relating to or connected with, such cancellation. 

(B) Without prejudice to any other rights of the Supplier, the Supplier may terminate this Agreement at any time by giving the Customer 7 days written notice of termination (or without any notice at all if the Customer, in the sole and absolute opinion of the Supplier, commits a serious breach of this Agreement or any law, or commits any act or omission which may cause the Supplier to be in breach of any law).  

(C) The Customer may terminate this Agreement by giving 7 days written notice to the Supplier. The Supplier will be entitled to be paid the Fees for all Services provided to the date of termination. If the Customer cancels any part of the Services, the Customer shall be liable (without prejudice to any other rights of the Supplier at law or under this Agreement) for any harm, loss, damage suffered whatsoever and howsoever by the Supplier up to the time of cancellation. 

(D) The Supplier may charge a cancellation fee against the Customer.

(E) The expiration or termination of this Agreement does not extinguish or affect the rights of any party to this Agreement:

(i) which arose prior to the Agreement coming to an end; or

(ii) which arise following the ending of the Agreement from any act or omission committed by a party prior to the expiration or termination of the Agreement; or

(iii) which are intended to survive the ending of the Agreement.

11. GENERAL

  1. Notices: Any communications to a party under this Agreement must be in writing and delivered personally, or by prepaid post to the party’s address for service, or sent by email to the party’s email address, when the email will be treated as received when it is transmitted.

  2. Variation: This Agreement can be amended in writing with the written approval of the Supplier, which may be withheld at the sole, absolute and unfettered discretion of the Supplier, for any reason whatsoever. The Customer agrees that the Supplier may review and vary the terms of this Agreement at any time, with any changes to take effect from the date on which the Supplier notifies the Customer of such change. 

  3. Waiver: A failure or delay by the Supplier to exercise a right or power, whether in full or only partially, under this Agreement does not act as a waiver of any such rights or powers.

  4. Confidentiality: The terms of this Agreement are strictly confidential, which must not be disclosed other than for professional advice.

  5. Nature of relationship: Nothing in this Agreement gives rise to a joint venture, partnership, employment relationship, franchise, agency, fiduciary or any other such relationship between the parties. The relationship between the parties is that of independent contractors.

  6. Assignment and Subcontracting: The Supplier may assign any of its rights and obligations (or subcontract the whole or any part of the Services) under this Agreement to any party at any time at their sole and absolute discretion. The Customer must not, without the prior written approval of the Supplier, mortgage, charge, encumber or assign any of their rights or obligations under this Agreement.

  7. Severance: If any one or more of the provisions of this Agreement are found to be unenforceable, each such provision will be read down or severed from the Agreement to the extent of the unenforceability.

  8. Entire Agreement: This Agreement constitutes the entire agreement between the parties and any prior understanding or representation preceding the date of this Agreement shall not be binding on the parties except to the extent incorporated into this Agreement.

  9. Legal Advice: Each party warrants that they have legal capacity to enter this Agreement, and have each obtained independent legal advice (or were given the opportunity to obtain independent legal advice but elected not to do so) prior to entering into this Agreement.

  10. Law and Jurisdiction: The courts and/or tribunals of the State or Territory in Australia in which the principal business address of the Supplier, from time to time, is located, will have exclusive jurisdiction in relation to all matters, issues and/or disputes arising from, or connected with, this Agreement (unless the courts and/or tribunals of another State or Territory in Australia are elected, at the sole, absolute and unfettered, discretion of the Supplier, for any reason whatsoever). The Customer unconditionally waives its rights to dispute any such forum or venue on the grounds of inconvenience or for any other reason. The laws of the State or Territory chosen by the Supplier to govern this Agreement will govern this Agreement.