our terms of service

The only conditions and warranties binding on us in respect of the state, quality or nature of any Service supplied by us (or our employees, servants or agents) to you, are those imposed and required by law to be binding on us (including under the Competition and Consumer Act 2010 (Cth) and applicable state fair trading laws). All other conditions and warranties, whether express or implied, in respect of the Services are hereby expressly excluded and negated.

2.1 To the fullest extent permitted by law, our liability (if any) arising from a breach of any applicable terms, conditions or warranties is, at our option, limited to, and completely discharged by supplying of the Services again, or the refund by us of the fee paid for those Services during the period of 12 months prior to the liability arising.
2.2 Except to the extent already set out in this clause, we have no liability (including liability for negligence or recklessness) to any person for any loss or damage (direct, consequential or otherwise) suffered or incurred by any person in relation to any goods or Services supplied by us (or any of our employees, officers or agents). Without limiting the generality of this limitation, we have no liability for any loss or damage resulting from any failure, defect or deficiency of any kind in any goods or Services, and we are not liable for any loss of profit or special, indirect or consequential damages of any kind.
2.3 Any valid claim by you against us must be presented in writing to us within a reasonable time, and in no event longer than 60 days after the goods or Services have been supplied. No action may be maintained by you against us unless a timely written claim has been given under this clause, and unless legal action is commenced within 12 months after the supply of the relevant goods or Services.

3.1 The terms set out in this clause 3 have priority over any other terms.
3.2 From time to time, we may provide you goods and/or Services (a Third-Party Supply) from or on behalf of a third-party provider (the Principal). We may provide a Third-Party Supply as principal or as agent.
3.3 We do not warrant the performance or integrity of any Third-Party Supply. We merely pass through to you whatever end-user representations and warranties the Principal provides to or through us with the Third Party Supply.
3.4 We are not responsible for any acts or omissions of the Principal, for any obligations undertaken or representations that they may make, or for any other products or services they may supply to you, either directly or through us.
3.5 We have no control over the intellectual property in a Third-Party Supply, and therefore do not take any responsibility for any liability arising as a result of the Third Party Supply. We do not indemnify you for claims by third parties that may arise as a result of a Third-Party Supply infringing any intellectual property of any third party. We will pass through to you any indemnity or cover provided by the Principal in respect of the Third Party Supply.
3.6 Your sole and exclusive remedy for any breach of warranty or other liability is as stated in the Principal’s own terms and conditions.

4.1 Upon Acceptance, you will be bound to purchase the Services. You cannot cancel an order for Services after Acceptance without our written consent, which we can withhold at our complete discretion.
4.2 If we agree to cancel an order for Services, you must:
(a) Pay to us any expense, cost or loss incurred or suffered by us as a result of the cancellation of the order; and
(b) Pay to us our fee for any Services that we have commenced to supply.

5.1 We agree to supply, and you agree to purchase, the Services in the manner and at the times provided in these Terms.
5.2 It is your responsibility to ensure that any track changes made in the supply of the Services do not introduce errors when accepted and/or rejected.
5.3 We will make all reasonable efforts to complete the Services to a high standard. However, we do not guarantee perfection.
5.4 At all times, it is your responsibility to ensure that any quote and/or references produced in the supply of the Services are correct.

We are free to provide similar Services to persons other than you.

7.1 We may subcontract the supply of some or all of the Services to other persons.
7.2 If we have disclosed to you that the supply of some or all of the Services will be supplied by a particular subcontractor:
(a) The supply will be a Third-Party Supply;
(b) The subcontractor will be Principal; and
(c) The Fees that we are entitled to are subject to change due to corresponding changes imposed by our subcontractor.

8.1 If we are delayed in the supply of the Services, we will notify you as soon as we are aware of an actual or expected delay.
8.2 We will give you details of the circumstances giving rise to the delay and the anticipated duration of the delay.
8.3 On receipt of a notice of delay, you will extend the time for the supply of the Services by a reasonable period if the delay is beyond our reasonable control.

9.1 We will invoice you for the Services at the rates and in the manner set out in our Proposal, plus any disbursements incurred on your behalf in order to provide the Services.
9.2 You agree that we reserve the right to adjust the rates and quoted and/or specified fees in our Proposal, if additional costs are incurred in relation to the provision of the Services or arising out of or in connection with any event beyond our control.
9.3 In consideration of us agreeing to provide the Services, you agree to promptly pay our Fees within 14 days.
9.4 If you have not paid our Fees within 14 days, we will immediately cease to provide further Services to you until such time as all of our Fees have been fully paid.
9.5 Our Fees are, unless otherwise explicitly stated, quoted exclusive of GST, and GST will be added to our Fees (where applicable).
9.6 The making of a payment by you will, in the absence of prior written notice to us, constitute approval of the Services supplied by us.
9.7 If you dispute any Supply Charge made by us, in whole or in part, you shall promptly notify us of the dispute, but shall not delay in paying the Supply Charge within the agreed terms.
9.8 We will give you advance notice of any changes to our Fees. You must pay for the Services at our current Fees as notified by us.

You may not withhold from any payment, or offset against any payment, due to us any amount in respect of any amount owed by or claim against us.

11.1 If you fail to pay us any amount under these Terms, we may:
(a) Immediately terminate the arrangement between us by providing you with written notice of termination;
(b) Terminate any credit extended to you; and
(c) Initiate legal action for recovery of any outstanding amounts owed by you and the costs incurred (including but not limited to legal costs on a solicitor and own client basis).
11.2 Time is of the essence for the payment of amounts due to us by you.
11.3 You will pay interest on amounts due to us that are over the payment terms at the rate of 3% per month accrued daily and compounded monthly from the date payment is due to the date on which payment is received by us.
11.4 You will be liable to us for all costs and expenses (including legal costs) incurred by us in collecting any overdue account, or incurred by us due to any breach or default of these terms, and must pay the same to us immediately upon notice or demand.

12.1 You must disclose all relevant information to us relating to the terms, conditions and circumstances in which we are to supply the Services. Without limitation, you will disclose to us:
(a) Accurate, complete and sufficient information concerning the Services to allow us to comply with all laws and regulations concerning the supply of the Services; and
(b) All foreseeable hazards associated with the supply of the Services by us.
12.2 You confirm that all information provided by you, including the Reference Materials, are true, accurate and complete in all material respects, and may be relied upon by us in the supply of the Services.
12.3 You also confirm that any Reference Materials provided to us do not breach any Intellectual Property rights.
12.4 You indemnify us against all losses, costs, penalties and expenses which we pay or incur as a result of you failing to fully discharge the obligations in this Clause 12.

13.1 Unless otherwise agreed in writing by us, all Work Product designed, developed or produced by us in connection with the supply of the Services, is and remains our exclusive property until all Fees are paid in full.
13.2 If you do not pay our Fees in full, the actual or implied licence to use any Work Product terminates. You are required to return all original and copies of such Work Product to us within 5 Business Days of being requested to do so.
13.3 All file notes and work papers created by us in the course of supplying the Services remain our property.

14.1 We will supply the Services to you from the date of Acceptance and until Termination. However, we may accept or reject any supply order from you (at our discretion).
14.2 If these Terms are stated to be for a fixed period, or in respect of the supply of certain discrete Services, then these Terms will terminate on the expiry of that period or completion of the supply.
14.3 Subject to clause 14.2, either of us may terminate these Terms by giving the other party written notice of termination of no less than 14 days’ notice.
14.4 If you ask us to supply further Services after the Termination of these Terms and we do so without first agreeing different terms with you, these Terms will regulate the supply of those further Services.
14.5 Either of us may terminate these Terms immediately by written notice to the other party, if that other party:
(a) Commits a breach of any of the material provisions of these Terms, or is in default of any warranty or obligation under these Terms, and fails to remedy such breach or default within 10 Business Days of receiving written notice of breach or default;
(b) Is or becomes insolvent,
unless that default is waived in writing by the other party, but without prejudice to any other rights or remedies available to the other party.
14.6 Termination is without prejudice to any rights that have already accrued to either of us under these Terms.

15.1 You may collect your Reference Materials within the period of 15 Business Days following Termination.
15.2 We may destroy or discard any of your Reference Materials that you do not collect from us on Termination of these Terms.
15.3 If we are required to store any of your Reference Materials, you will be charged the costs of storage. You will also be charged any costs of retrieving your Reference Materials from storage.
15.4 All Reference Materials in our possession, both during and following the term of these Terms, are held by us at your risk.

We may correspond with both you and others by e-mail or other electronic means, where appropriate, unless you specifically instruct us to the contrary. You agree to assume the risks associated with transmission and to release us from any claim you may have arising from transmission defects.

Except as we may specifically agree otherwise, and subject to any confidentiality undertakings of which we are made aware between you and any other party with respect to particular Services, you agree that we may include, in a list of Services we have provided which we use for promotional purposes, a summary description of all completed supplies of Services and any pending Services which we provide to you.

We will supply the Services as an independent contractor and neither us nor any of our personnel will (unless otherwise agreed by us) be, or be deemed to be in partnership or in a joint venture relationship with you, or your employee, servant or agent.

19.1 These Terms must be read subject to the Competition and Consumer Act 2010 (Cth) and to any implied terms, conditions or warranties imposed by that Act or any other Commonwealth, Territory or State legislation insofar as such legislation may be applicable and prevents the exclusion or modification of any such term, condition or warranty, and our liability is limited to the maximum extent permitted by law.
19.2 We will agree a time for the provision of our Services with you. You agree that the time within which we provide Services to you is reasonable.

You agree to keep confidential and not at any time after the commencement of these Terms disclose or make known in any way to anyone anything contained within the Terms, and you agree to procure each of you agents, employees and advisors to do the same.

21.1 If a delay or failure of a party to perform its obligations is caused or anticipated due to Force Majeure, the performance of that party’s obligations will be suspended during the Force Majeure. Neither of us is liable for any delay or failure to perform our obligations under these Terms if such delay is due to Force Majeure.
21.2 If a delay or failure by a party to perform its obligations due to Force Majeure exceeds 60 Business Days, either party may then terminate these Terms with notice in writing to the other party.

For the purposes of these Terms, each party:
(a) Expressly acts, covenants and binds on behalf of itself and on behalf of its related parties (including heirs, successors, permitted assigns, associated entities and legal personal representatives); and
(b) Covenants to procure (to the best of its abilities) the performance by each of its related parties of the terms and conditions contained herein.

These Terms nor any right or obligation under these Terms are assignable in whole or in part by you, without our prior written consent.

24.1 Any waiver or forbearance by us in regard to the performance of these Terms operates only if in writing and applies only to the specified instance and does not affect the existence and continued applicability of these Terms.
24.2 No failure or delay on our part in exercising any right, power or privilege under these Terms (and no course of dealing between or among any of the parties) operates as a waiver of any such right, power or privilege.
24.3 No waiver of any default on our part on any one occasion constitutes a waiver of any subsequent or other default. No single or partial exercise or any such right, power or privilege precludes the further or full exercise of such right, power or privilege.

If any provision of these Terms is held to be illegal, invalid or unenforceable, these Terms must be considered divisible and inoperative as to such provision to the extent it is illegal, invalid or unenforceable. In all other respects these Terms remains in full force and effect.

All notices must be in writing, and will be deemed as being given and received:
(a) If hand delivered, at the time of delivery;
(b) If posted, 5 Business Days after the day of posting;
(c) If emailed, after one hour of sending the message.

27.1 Our Proposal, these Terms, and any other terms incorporated into our Proposal (collectively, the Agreement) constitute the sole and entire understanding with respect to the subject matter of the Agreement and the Agreement and supersede all prior discussions, proposals, representations and understandings, written or oral.
27.2 To the extent there is any conflict between these Terms and our Proposal, these Terms prevail except to the extent that our Proposal specifically states that it overrides or modifies these Terms.

The parties intend the provisions of these Terms to be legally binding and enforceable against us.

These Terms may be executed in two or more counterparts and execution by each of the parties of any one of such counterparts constitutes due execution of these Terms.

These Terms are governed by and construed in accordance with the laws of South Australia. The parties irrevocably submit to the non-exclusive jurisdiction of the Courts of South Australia in respect of any claim, dispute or difference arising out of or in connection with these Terms.

31.1 In these Terms unless the context indicates a contrary intention:
(a) If a word or phrase is defined, its other grammatical forms have a corresponding meaning;
(b) A reference to legislation or to a provision of legislation includes a modification or re-enactment of it, a legislative provision substituted for it and a regulation or statutory instrument issued under it;
(c) A reference to dollars and $ is to Australian currency; and
(d) A reference to a right or obligation of any two or more persons confers that right, or imposes that obligation, as the case may be, jointly and severally.

In these Terms, unless the context clearly indicates otherwise, the following expressions have the following meanings:
32.1 Acceptance means the acceptance by you of our Proposal;
32.2 Business Day means a weekday (excluding a public holiday) in South Australia;
32.3 Confidential Information means any information coming to a party by virtue of being a party to these Terms, except so far as that information is then in the public domain other than as a result of a breach by the party of these Terms;
32.4 Force Majeure means a circumstance beyond the reasonable control of the parties that results in a party being unable to observe or perform on time an obligation under these Terms, including but not limited to acts of God, lightning strikes, earthquakes, floods, storms, explosions, fires and any natural disaster, acts of war, acts of public enemies, terrorism, riots, civil commotion, malicious damage, sabotage and revolution, public health events, government enactments and orders, and strikes;
32.5 Intellectual Property means all industrial and intellectual property rights including, without limitation, any copyright, patents, trademarks, service marks, design rights or eligible layout rights (whether registered or not), rights to apply for registration of any of these rights, innovations, drawings, discoveries, inventions, improvements, trade secrets, technical data, formulae, computer programs, data bases, logos, domain names, business and trade names, Confidential Information, know-how and advertising material;
32.6 Proposal means our offer to provide you with Services;
32.7 Reference Materials means the materials provided by you to us for the purposes of us supplying the Services;
32.8 Services means the advice, recommendations, information, rights and services to be supplied under these Terms including any goods produced as a result of any services;
32.9 Fees means our fees and charges for the supply of the Services, including the fees and charges set out in our Proposal (as adjusted if applicable);
32.10 Termination means the termination or expiry of these Terms on its terms; and
32.11 Work Product means all Intellectual Property in an associated with the Services and the product or outcome of our supply of the Services.