1.The terms of Your Contract
1.1 Your Contract in respect of each service provided by or on behalf of Us (a “Service”) is made up exclusively of:
(a) these Terms of Service;
(b) the Service Description stated on our website in relation to the relevant Service;
(c) any other terms and conditions stated expressly in the Contract Details; and
Any inconsistency between any of those documents will be resolved in favour of the document that appears first in the above list, except to the extent that a document that appears later in the list is stated to expressly override a document that appears earlier in the list.
1.2 Except as expressly stated in one of the documents listed in clause 1.1, no other terms or conditions are incorporated into Your Contract, despite any terms to the contrary in any purchase order forms, order acknowledgements or other documents used by You to order Services. The documents listed in clause 1.1 supersede all prior arrangements (whether written or oral) in relation to their subject matter.
2. Changes to the terms of Your Contract
2.1 We may change the terms of Your Contract either by obtaining Your consent or by giving You notice of the change.
2.2 If we do not obtain Your consent to a change, the period of notice required to be given depends on the nature of the change. If:
(a) the change will benefit You or have a neutral impact on You, we may make the change without giving You advance notice;
(b) the change is required to comply with any Law or lawful requirement of any regulatory body, to preserve or safeguard the security, performance or integrity of any network or system we use to provide services to our customers or to maintain any accreditation we are required to have at Law to perform particular services, we will give You a reasonable period of notice not exceeding 3 days, by sending an email describing the change to an email address You have provided for that purpose; and
(c) for all other changes, we will also give You at least 30 days’ notice prior to the change taking effect, explaining the nature of the change, by sending an email describing the change to an email address You have provided for that purpose.
2.3 Whenever We make a change to these Terms of Service, then in addition to any other notice requirements stated in clause 2.2, it will post a new version of these Terms of Service on Our website at or before the time the change takes effect.
3. Our Services
3.1 We will use Our reasonable efforts to supply each Service to You in accordance with the Contract.
3.2 We may from time to time use third parties to act on your behalf in order to provide the services. You appoint us as your agent in order to engage those third parties to act on your behalf and to instruct them in order to deliver the Services to You.
3.3 You acknowledge and agree that a number of our Services are subject to limitations, which are explained on our Website and which You agree and represent to Us that You have read and understood. For example, search results may be limited as to accuracy or completeness.
4. Use of Our Software and Website
4.1 To the extent that the Services involve Us providing You with any Software, or access to any Website or computer Software stored on Our computer systems (together referred to as “Software”), We grant to You a personal, non-exclusive, revocable licence to use the Software solely for the limited purpose of receiving the Service.
4.2 You must use all Software in accordance with any documentation or written instructions provided to You by Us.
4.3 Except to the extent expressly permitted by the terms of Your Contract, You must not:
(a) allow any other person to use the Software, or use the Software to process the data of any other person;
(b) copy, sell, mortgage, sub-license or reproduce the Software without Our express permission;
(c) alter or remove any mark of ownership, copyright, patent, trademark or other property right which is embodied in the Software or any associated documentation;
(d) modify the Software or merge all or any part of the Software with other programs without Our express permission;
(e) reverse disassemble, decompile or reverse engineer, or directly or indirectly allow or cause a third party to disassemble, decompile or reverse engineer the whole or any part of the Software or any locking or security device used or supplied with the Software, or otherwise attempt or allow any other party to attempt to obtain the algorithms by which the Software perform its functions; or
(f) export or otherwise transfer the Software outside the country in which it is provided to You.
4.4 You acknowledge and agree that processes implemented by the Software are protected by intellectual property rights and are owned or licensed by Us.
4.5 We provide the Software to you on an “AS IS” and “AS AVAILABLE” basis, without any warranty as to its availability or performance.
5. Your Username and Password
5.1 To the extent that the Services involve Us providing You with access to any of Our Software or systems, We may allocate You a username and password (or other such access codes) (referred to collectively as “Login Details”) for the purpose of gaining access to those systems.
5.2 You must keep all Login Details secure and confidential at all times and must not disclose them to anyone else (except those of Your employees who need to know them for the purposes of their employment). If You have reason to believe that this clause has been breached or that a third party has obtained unauthorised access to Your Login Details, You must notify Us immediately.
5.3 You agree that We cannot and do not know whether You have given Your Login Details to other people (whether knowingly or not, and whether directly or indirectly). You therefore agree that You are totally responsible for all actions of the people (if any) to whom You provide Your Login Details (whether knowingly or not, and whether directly or indirectly) while they obtain access to Our Software and systems using those Login Details, and that We are entitled to treat instructions provided by those people through such access as instructions originating from You.
5.4 You agree that We may from time to time require You to provide Your Login Details to Us in order to receive the Services. You acknowledge that if You fail to provide the Login Details to Us if requested by Us, We reserve the right not to provide You with those Services until You are able to provide the Login Details.
5.5 You release and indemnify Us and our officers, agents, employees and contractors from and against any and all Liabilities arising in connection with a failure by You to comply with this clause 5, or any use of Our Software or computer systems by a person not authorised by You or Us (if that person gained access to those systems by means of Your Login Details, other than because of any breach of contract, negligence or other wrongful act or omission by Us).
6. Your Obligations
6.1 You must provide Us with such co-operation and support as We reasonably request to allow Us to perform the Services, including by:
(a) ensuring that the information you provide to us is kept accurate and up-to-date, including by providing updates to Us as soon as practicable after any information changes;
(b) responding promptly to Our communications in relation to the Services;
(c) providing accurate and prompt responses to Our requests for any information or documentation reasonably required by Us to perform the Services; and
(d) making available, at Your cost, access to such of Your premises, computer systems, computer networks, equipment and authorised personnel as may reasonably be required for Us to perform the Services for You.
6.2 You must perform any responsibilities allocated to You under:
(a) these Terms of Service;
(b) the Service Description stated on our website which is applicable to any of the Services;
(d) any other terms and conditions stated expressly in the Contract Details,
in a timely manner and with reasonable skill and care, and in all cases in accordance with any requirements stated in those documents.
6.3 We will contact you only by email. You are solely responsible for receipt of correspondence sent to you. We are not responsible for your failure to receive correspondence sent to you due to any security or anti-spam system or any problems with your email system.
6.4 You must use the Software and the Services in accordance with all applicable Laws and must ensure that all information, directions and requests provided by You to Us in relation to the Services complies with all applicable Laws. You must not use the Software or the Services for the purpose of conducting or promoting any activities which are in breach of any applicable Laws or any rights of any third party.
6.5 You must ensure that any data or electronic files exchanged between You and Us does not contain any computer viruses or other forms of software designed to damage or disable any person’s computer systems or to corrupt or destroy any person’s data, or permit a person to gain unauthorised access to any person’s computer systems (“Malware”). If You have reason to believe that You have received from Us or transmitted to Us any Malware, You must notify Us of that fact immediately.
6.6 Except to the extent that We expressly agrees to do so as part of a Service, You must conduct backups of any of Your data (whether hosted on Our computer systems or provided to Us in connection with the performance of the Services) at such intervals as are reasonable having regard to the nature of the data and the effort involved in recreating it, and at such other times as specified in the Service Description or Contract Details.
7. Fees and Payment
7.1 All fees are non-refundable and payable in advance, unless otherwise expressly stated on Our Website. You must pay Us the Service Fees without setoff or deduction of any kind.
7.2 We will not undertake any work on Your Services until we have received payment from you and such payment has cleared any security and fraud prevention checks that We undertake.
7.3 Any amount due to Us under the Contract and remaining unpaid after the date payment is due will bear interest, to accrue from day to day at the applicable Default Rate, from (and including) the date such amount is due until it is paid in full.
7.4 The Service Fees are exclusive of all Taxes unless otherwise expressly stated. You will be responsible for all Taxes payable in respect of the supply of the Services (other than tax on Our income) and must pay Us all such Taxes on demand.
7.5 If any GST is payable on a Taxable Supply made under, by reference to or in connection with the Contract, the party providing the Consideration for that Taxable Supply must also pay the GST Amount as additional Consideration. This clause does not apply to the extent that the Consideration for the Taxable Supply is expressly stated to be GST inclusive.
8.1 Timeframes for the performance of our Services stated in the Contract Details are good faith estimates only. We will use reasonable endeavours to comply with such timeframes, but time is not of the essence in the adherence to such timeframes. You acknowledge that compliance with timeframes depends on a number of factors, including activities undertaken by third parties.
8.2 Without limiting any other provision of this Contract, We are not responsible for any delay in performing or failure to perform any of Our obligations under the Contract to the extent that failure is due to an event or circumstances beyond Our reasonable control (including any negligence by You, failure by You to provide information or instructions to us, failure by You to perform any of Your obligations under the Contract or any of Your other wrongful acts or omissions, an act of God, fire, earthquake, explosion, adverse weather conditions, strike, lockout or other labour difficulty, failure of any electricity, gas or water supply, failure of any public telecommunications network (including the Internet), act of public enemy, war or terrorism).
8.3 We may recover from You any additional costs reasonably incurred by Us as a result of any delay and You will pay those costs to Us on demand.
9.1 The Contract commences on the earlier of:
(a) the date on which We commence providing the Services to You; and
(b) the date on which the Contract is agreed to by You and Us.
9.2 We may terminate the Contract immediately if:
(a) You commit a material breach of your obligations under the Contract (including a breach of clause 12.1); or
(b) an Insolvency Event occurs with respect to the other party.
9.3 We may terminate this Contract immediately either:
(a) for any reason by giving You 30 days’ prior written notice; or
(b) if We determine that there has been or may be any activity which may have a negative impact on Our business or reputation (including illegal activity or infringement of any third party rights).
10. Confidentiality and Intellectual Property
10.1 You agree to keep all correspondence between us confidential and not disclose it to any third person for any reason.
10.2 The restrictions contained in clause 10.1 do not apply to:
(a) any Confidential Information which enters the public domain other than as a result of any breach of confidence by You or Your employees or agents;
(b) the disclosure of any Confidential Information to the extent required by a court of competent jurisdiction, governmental body or applicable regulatory authority under law, provided that You use reasonable endeavours to give Us as much prior notice of such disclosure as is reasonably practicable; or
(c) Your use or disclosure of Confidential Information in accordance with rights lawfully granted to You by a third party.
10.3 Nothing in the Contract transfers to You any IPR owned by Us existing prior to the commencement of the Services. All IPR in anything we produce in connection with the Services are and will remain owned by Us and You hereby assign such IPR (both present and future) to Us. We grant You a perpetual, irrevocable, non-exclusive, royalty-free licence to use the product of our work in order for You to receive the Services (but not to disclose the product of our work to third parties unless otherwise agreed in writing).
10.4 You release and indemnify Us and our officers, agents, employees and contractors from and against any and all Liabilities arising in connection with a failure by You to comply with this clause 10.
11.1 Subject to clause 11.5, We make no warranties, express or implied, in connection with the Services.
11.2 You warrant that:
(a) You are authorised to enter into this Contract;
(b) the information you provide to us is complete, true and correct in all respects;
(c) Your instructions to us in relation to the Service and You use of our Services does not and will not infringe any third party rights anywhere in the world and is not illegal anywhere in the world; and
(d) If you are instructing Us to provide Services on behalf of a third party, You are duly authorised to instruct Us on behalf of that third party.
11.3 You acknowledge that We nor any person acting on Our behalf has made any representation or warranty regarding the Services, any Software or any product of our Services (including as to the quality or suitability for any purpose, or whether the performance or possession or use of such things will infringe the rights of any person, or whether the Services will be uninterrupted or error free), which is not recorded expressly in the Contract.
11.4 You agree that We may be required to perform maintenance in respect of Our Software or computer systems to ensure their satisfactory operation, which maintenance may affect the availability or functioning of the Services. We will use reasonable endeavours to provide You with advance notice of any maintenance downtime, except when circumstances beyond the reasonable control prevent Us from doing so.
11.5 All terms and warranties which might otherwise be implied by any legislation, the common law, equity, trade, custom or usage or otherwise into the Contract, are expressly excluded to the maximum extent permitted by law. Where legislation implies into the Contract any term or warranty that cannot lawfully be excluded, that term or warranty is included but Our liability in respect of a breach of that term or warranty is, at Our option, limited to any one or more of the following:
(a) if the breach relates to goods:
(i) the replacement of the goods or the supply of equivalent goods;
(ii) the repair of such 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
(b) if the breach relates to services:
(i) the supplying of the services again; or
(ii) the payment of the cost of having the services supplied again.
12. Liability and indemnification
12.1 To the maximum extent permitted by applicable law, We are not liable for any direct, indirect, consequential, special, punitive or exemplary losses or damages of any kind (including, without limitation, loss of use, loss of profit, loss of corruption of data, business interruption or indirect costs) suffered by You arising from, as a result of, or otherwise in connection with, any act or omission whatsoever of Us, Our Affiliates and each of their respective directors, officers, employees, agents or contractors.
12.2 You must indemnify, keep indemnified and hold Us, Our Affiliates and each of their respective directors, officers, employees, agents or contractors harmless for all and any claims arising from, as a result of, or otherwise in connection with, the Services and your use of the result of the Services.
12.3 The limitations and exclusions in this clause 12 apply to any, loss, damage or claim whether based in contract (including under any indemnity or for breach of any warranty), tort (including negligence), under statute or any other legal basis.
(a) Any notice, demand, consent or other communication (a “Notice”) given or made under the Contract to Us must be in writing and signed by a person duly authorised by the sender, and delivered to the intended recipient care of the person and using the contact information stated in the Contract Details, and will be deemed delivered:
(i) if delivered in person – when delivered;
(ii) if delivered by post 2 Business Days after the date of posting (if posted to an address in the same country) or 7 Business Days otherwise; and
(iii) if delivered by fax – on receipt by the sender of a transmission control report from the despatching machine showing the relevant number of pages and the correct destination fax machine number or name of recipient and indicating that the transmission has been made without error.
Where as a result of the above a Notice would otherwise be taken to be given or made on a day that is not a Business Day or later than 4.00pm (local time) on a Business Day, it will be taken to have been duly given or made at the commencement of the immediately succeeding Business Day.
We may provide notice to you by email to the contact email address you provided us.
(b) You may not assign your rights or obligations under this Contract without Our consent. We may novate the Contract to any of Our Affiliates and You must execute such reasonable documents prepared by Us as necessary to effect such a novation. We are free to sub-contract any of Our obligations under the Contract.
(c) In providing the Services, We are acting in the capacity of independent contractor. The Contract does not constitute any partnership, trust, agency, joint venture or employment relationship between the parties.
(d) Each party agrees to do all things and execute all deeds, instruments, transfers or other documents as may be necessary or desirable to give full effect to the provisions of the Contract and the transactions contemplated by it.
(e) The Contract is governed by the laws of Victoria, Australia. Each party submits to the exclusive jurisdiction of courts exercising jurisdiction there in connection with matters concerning the Contract and waives any right it may otherwise have to claim that those courts are an inconvenient forum for the resolution of disputes.
(f) Nothing in the Contract is to be interpreted against a party solely on the ground that the party put forward the Contract or a relevant part of it.
14. Glossary of Terms
14.1 In these Terms of Service, unless the context requires otherwise:
“Acceptable Use Policy” means the Acceptable Use Policy located at http://tmarque.com.au/web/aup/.
“Affiliate” in relation to a party means any entity that controls or is controlled by or is controlled in common with that party, and includes any ‘related body corporate’ (as defined in the Corporations Act 2001 (Cth) of that party. For these purposes, an entity is taken to be ‘controlled’ by a party if that party owns the majority of share capital or other securities in the other entity to which a right to vote in a general meeting of the entity attaches, or if the management of the entity is controlled by that party.
“Business Day” means a day of the week other than a Saturday, Sunday or a day on which trading banks in Melbourne are not open for transacting business.
“Contract” means the legal agreement between You and Us relating to the provision of the Services by Us to You, which is made up of the documents referred to in clause 1.1.
“Contract Details” means an agreement (including an agreement made in writing, an agreement the terms of which are made available by means of a website, or the terms of which are agreed to orally) by Us to provide a person with certain services.
“Confidential Information” means all information of or pertaining to Us which has been in the past or is in the future supplied or disclosed to You or which otherwise comes to Your knowledge in connection with the performance of the Services, including without limitation:
(a) information concerning the business affairs, business partners, suppliers, plans or strategies of Us or any of Our Affiliates;
(b) information concerning any products or services which We propose to supply; and
(c) information which is designated by Us as being confidential or which a reasonable person would, given the nature of the information, consider to be confidential.
“Consideration” has the meaning given by the GST Law.
“Default Rate” in respect of an amount of money, means the rate of 1.5% per annum above the annual interest rate charged by Commonwealth Bank of Australia on overdrafts of the same amount.
“GST” has the meaning given by the GST Law.
“GST Amount” means in relation to a Taxable Supply the amount of GST payable in respect of that Taxable Supply.
“GST Group” has the meaning given by the GST Law.
“GST Law” has the meaning given by the A New Tax System (Goods and Services Tax) Act 1999 (Cth), or, if that Act does not exist means any Act imposing or relating to the imposition or administration of a goods and services tax in Australia and any regulation made under that Act.
“Input Tax Credit” has the meaning given by the GST Law and a reference to an Input Tax Credit entitlement of a party includes an Input Tax Credit for an acquisition made by that party but to which another member of the same GST Group is entitled under the GST Law.
“Insolvency Event” means:
(a) in respect of a party being an individual – the party dies, ceases to be of full legal capacity or commits an act of bankruptcy or makes a composition with or assignment of his or her property in favour of creditors;
(b) in respect of a corporation – the party:
(i) stops or suspends or threatens to stop or suspend payment of all or a class of its debts;
(ii) is insolvent within the meaning of section 95A of the Corporations Act 2001 (Cth), must be presumed by a court to be insolvent by reason of an event set out in section 459C(2) of that Act or fails to comply with a statutory demand (within the meaning of section 459F(1) of that Act);
(iii) has had an administrator appointed or any step preliminary to the appointment of an administrator taken, or has had a controller (within the meaning of section 9 of the Corporations Act 2001 (Cth)) or similar officer appointed to all or any of its assets or business;
(iv) has had proceedings commenced, a resolution passed or proposed in a notice of meeting, an application to, or order of, a court made or other steps taken against or in respect of it (other than frivolous or vexatious applications, proceedings, notices or steps) for its winding up, deregistration or dissolution or for it to enter an arrangement, compromise or composition with or assignment for the benefit of its creditors, a class of them or any of them; or
(v) if incorporated outside Australia, has become insolvent or suffered any event or similar event to those set out in paragraphs (i) to (iv) which would restrict its business operations or cause those operations to be placed under the control of a person other than its directors under the laws of its place of incorporation.
“IPR” means all rights in relation to copyright, trade secrets, trademarks, designs, drawings, patents, know-how, secret processes, formulae, semiconductor or circuit layouts and all other similar proprietary rights and all rights to the registration of those rights, whether created, formed or arising before, on or after the date of the Contract, in Australia or elsewhere.
“Law” means any statute, regulation, order, rule, subordinate legislation or other government requirements of any place, or any document enforceable under any of them, which is applicable to the Contract or the performance of the Services.
“Liability” includes any loss, damage, cost, expense (including the full amount of any legal expenses) and other liability whatsoever, whether prospective or contingent, and whether ascertainable or not.
“Services” has the meaning given to that term by clause 2.1 .
“Service Fees” means the fees stated in the Contract Details as being payable in respect of the performance of the Services or, where no such fees are stated, fees for the performance of the Services calculated on a time and materials basis.
“Software” has the meaning given to that term in clause 4.1.
“Tax” includes any tax, levy, impost, deduction, charge, rate, duty, or withholding that is levied or imposed by a governmental agency, and any related interest, penalty, charge, fee or other amount.
“Terms of Service” means these terms and conditions.
“You” means the entity for whom work under the Contract is performed and includes that entity’s executors, administrators, successors and permitted assigns.
14.2 The following rules of interpretation apply in the Contract:
(a) the singular includes the plural;
(b) a reference to a person includes a corporation, partnership, joint venture, association, authority, trust, state or government and vice versa;
(c) a reference to any agreement or document is to that agreement or document as amended, novated, supplemented or replaced from time to time;
(d) if a word or phrase is defined, its other grammatical forms have a corresponding meaning;
(e) examples are descriptive only and mentioning anything after includes, including, for example, or similar expressions, does not limit what else might be included;
(f) a provision must not be construed against a party merely because that party was responsible for preparing that provision;
(g) a reference to any legislation or legislative provision includes any statutory modification or re enactment of, or legislative provision substituted for, and any subordinate legislation issued under, that legislation or legislative provision;
(h) any reference in the calculation of Consideration or of any indemnity, reimbursement or similar amount to a cost, expense or other liability incurred by a party, must exclude the amount of any Input Tax Credit entitlement of that party in relation to the relevant cost, expense or other liability. A party will be assumed to have an entitlement to a full Input Tax Credit unless it demonstrates otherwise prior to the date on which the Consideration must be provided;
(i) if the doing of any act, matter or thing under the Contract is dependent on the consent or approval of a party or is within the discretion of a party, the consent or approval may be given or the discretion may be exercised conditionally or unconditionally or withheld by the party in its absolute discretion.