Terms of Trade
THE PARTIES ARE:
OPMC A.B.N.98 608 172 943, of GPO Box 2060, Sydney, NSW 2001, AUSTRALIA (the “Contractor”);
You (the “Customer”).
A. The Contractor provides its customers with web based business solutions and business solutions that are accessible via the internet.
B. The Contractor has informed itself of all aspects of the work required to be performed, as best as it could through the information provided to it by the Customer, and thereupon has represented to the Customer that it has the requisite skills and experience to perform that work to the best of the Contractor’s abilities.
C. The Contractor has discussed the Services with the Customer and the Customer has agreed to engage the Contractor to provide to it the Services and, both parties agree to this arrangement on the terms stated in this Agreement.
THE PARTIES AGREE that, in consideration of the promises given and received by the parties:
1. Definitions and Interpretation
1.1 In this Agreement, unless the context indicates otherwise:
“Agreement” means this document and any written communications and their amendments from time to time as agreed between the parties, including:
(a) the Contractor’s quote and estimate of the contractor’s fees provided to the Customer for the Services; and/or
(b) emails, faxes, letters or other communications provided by the Contractor to the Customer stating the relevant information on its Services.
“Commencement Date” is date of this Agreement;
“Contractor’s Fees” means the price set out by the Contractor in writing, once agreed between the Contractor and the Customer;
“Customer” means the person or entity stated in the Agreement;
“GST” has the same meaning as in the GST Act;
“GST Act” means the A New Tax System (Goods and Services Tax) Act 1999 (Cth);
“Harmful Code” means any virus, disabling or malicious device or code, worm, Trojan, time bomb or other harmful or destructive code, but does not include:
(a) software lock or other technical mechanism that is included to manage the proper use of any software;
“National Privacy Principles” means the national privacy principles contained in the Privacy Act;
“Personal Information” means personal information (as that term is understood in the Privacy Act) that a party receives pursuant to this Agreement;
“Privacy Act” means the Privacy Act 1988 (Cth) and any other similar or corresponding legislation under any applicable laws;
“Services” means all assistance provided to the Customer for a fee, as specified in the Agreement
“tax invoice” has the same meaning as in the GST Act;
“Term” means the period from the Commencement Date until this Agreement is terminated.
(ii) In this Agreement, unless the context indicates otherwise:
(a) headings are for convenience only and do not affect the interpretation of this Agreement;
(b) reference to the singular includes the plural and vice versa;
(c) reference to any gender includes the other genders;
(d) reference to a person includes a corporation and vice versa; and reference to a person or a corporation includes a firm, a body corporate, an incorporated association or an authority;
(e) reference to a party includes that party’s executors, administrators, successors and permitted assigns;
(f) every obligation entered into by two or more parties binds them jointly and each of them severally;
(g) any term which is defined in the descriptions of the parties, the recitals or elsewhere in this Agreement will have the meaning there defined;
(h) where any word or phrase is defined in this Agreement, any other grammatical form of that word or phrase will have a corresponding meaning;
(i) reference to a part, clause or other subdivision is to a part, clause or other subdivision of this Agreement;
(j) annexures and appendices (if any) form part of this Agreement;
(k) reference to any agreement or other document annexed to or referred to in this Agreement includes any amendments to it and any document in addition to or in substitution for it which has been approved in writing by the parties to this Agreement;
(l) no provision of this Agreement will be construed adversely to a party on the ground that the party was responsible for the preparation of this Agreement or that provision;
(m) reference to “month” is to a calendar month;
(n) reference to a time is to the official time in the place where the act is required to be done;
(o) reference to a statute, ordinance, code or other law includes any amendment to it, any replacement of it and any statute, ordinance, code or other law intended to operate in conjunction with it and, in each instance, includes every regulation, rule and other instrument pursuant to it;
(p) all monetary amounts are in Australian dollars;
(q) reference to a payment to any party to this Agreement includes a payment to another person at the direction of such party;
(r) all payments to be made under this Agreement will be made by unendorsed bank cheque or other immediately available funds; and
(s) “including” and similar expressions are not words of limitation.
2. The Appointment
2.1 The Contractor represents and warrants to the Customer that the Contractor has all the necessary skills, knowledge, experience and expertise to perform the Services and will perform the Services to a good and proper standard.
2.2 The Contractor and its employees and contractors take all due care to keep data securely stored, however it is not responsible for unauthorised third party access to data stored or accessed via the internet, including but not limited to the actions of hackers, computer viruses and other unlawful interventions.
3. Contractor’s Fees and Payment
3.1 In respect of the Contractor’s Fees, the Contractor will issue a tax invoice for the Services setting out the Services to be performed as agreed. The tax invoice will separately list any GST payable.
3.2 The Contractor will clearly state in any written communications whether a price is a quotation or an agreed-upon sum.
3.3 The Customer has agreed to pay the Contractor the Contractor’s Fees at the times set out by the Contractor.
3.4 The tax invoice will be issued by the Contractor – all invoices will specify when payment is due, some payment due prior to commencement or any instalment thereof as so invoiced or the instalment (which is due) as set out in the tax invoice.
3.5 The method of the payment of the Contractor’s Fees is as set out in the invoice.
4. Penalties for overdue invoices
4.1 Payment of the Contractor’s Fees is due on the date specified in the TERMS of the invoice.
4.2 If payment is not made by the due date, the invoice is subject to a penalty charge, calculated as:
(a) $10.00 per month; or
(b) 7% of the total bill per month (whichever is higher).
4.3 If the Contractor spends over an hour in recovering overdue payments, further penalties will be incurred at a rate of $65.00 (plus GST) per hour.
4.4 The Customer agrees that any charges that the Contractor incurs in debt collection, including agency and court fees, will be passed on by the Contractor to the Customer.
4.5 All additional penalty charges listed in this clause will be added to the invoice until the invoice is paid in full.
4.6 Unpaid penalties are subject to the Termination clause 15.
5. General Obligations of the Parties
The Contractor and the Customer will, at all times:
(a) act reasonably in performing their obligations and exercising their rights stated in this Agreement;
(b) diligently perform their respective obligations stated in this Agreement; and
(c) work together in a collaborative manner.
6. Customer’s Obligations
6.1 The Customer represents and warrants that:
(a) it has the right to enter into this Agreement;
(b) it has provided and will provide during the Term current, true and accurate information, including information on its software and browser, to the Contractor for the purposes of the Contractor to provide the Services in accordance with its obligations in this Agreement;
(c) it will pay the Contractor’s Fees and any other charges stated in this Agreement and within the periods stated in this Agreement;
(d) it will not, nor will it suffer or permit any third party under its direction or control to negligently introduce into the Contractor’s systems or any Services performed by the Contractor any Harmful Code;
(e) if any Harmful Code is introduced, it will use its best efforts promptly to report that introduction to the Contractor and, where that Harmful Code is introduced as a result of a breach of clause 6.1(b), it will:
(i) take all necessary action to eliminate the Harmful Code; and
(ii) promptly, at its own cost, repair any harm or destruction caused by that Harmful Code.
6.2 The Customer must ensure that if the Services are to be performed on the Customer’s property that:
(a) it must cooperate with the Contractor by providing access to its property and facilities as necessary to enable the Contractor to provide the Services;
(b) at all times the property is safe and that all facilities provided by the Customer to the Contractor for the purpose of enabling the Services to be performed and also safe.
6.3 The Customer consents to the Contractor making all necessary enquiries about the Customer’s credit history with relevant authorities, as well as, authorises such authorities to make information available to the Contractor.
6.4 The Customer acknowledges and agrees that:
(c) from time to time, it may be necessary for the Contractor to engage, on its behalf, the services of a third party to provide specialist services, or to act as the Contractor’s agent, for the purposes of providing the Services; and
(d) it will comply with the terms of engagement of the third party; and
(e) it will indemnify (and keep indemnified) the Contractor in relation to any loss, damage, claim, cause of action, costs, fees, charges and expenses which it may suffer, incur or be liable for in relation to the services of the third party.
7. Contractor’s Obligations
7.1 The Contractor must, if using or accessing the Customer’s property or facilities:
(a) at all times have liability insurance;
(b) comply with all reasonable directions and procedures relating to occupational health and safety and security in operation at the property or facilities;
7.2 The Contractor will not, nor will it suffer or permit any third party under its direction or control to negligently introduce into the Customer’s systems or any Services performed by it any Harmful Code;
7.3 If any Harmful Code is introduced by the Contractor, the Contractor will use reasonable efforts promptly to report that introduction to the Customer and, where that Harmful Code is introduced as a result of a breach of clause 7.2, it will:
(a) take all necessary action to eliminate the Harmful Code; and
(b) promptly, at its own cost, repair any harm or destruction caused by that Harmful Code.
7.4 If any Harmful Code is introduced by a third party which is not pursuant to a breach of clause 7.2, the Contractor will use reasonable efforts promptly to report that introduction to the Customer, and the Contractor will, at the cost of the Customer:
(c) take all necessary action to eliminate the Harmful Code; and
(d) promptly repair any harm or destruction caused by that Harmful Code.
7.5 Where the Contractor has created or holds any password, domain names or other authorisations which in any way relate to the Customer’s business or to its services, the Contractor acknowledges that they are all held by the Contractor exclusively for the Customer or as the Customer may direct.
7.6 If the Customer complies with its obligations in clause 6, then the Contractor warrants to the Customer that all the Services it performs will be fit for their intended purpose, will be capable of being used by the Customer for their intended purpose and will perform in accordance within their applicable specifications (if any) within the capabilities of the software.
8.1 If specified in the Agreement, then the Contractor will use all reasonable measures to complete the Services in the timeframe.
8.2 If an event occurs that is beyond the reasonable control of the Contractor which prevents the Contractor from performing the Services by the date set out in writing by the Contractor, will as soon as practicable notify the Customer in writing the details of the event and give an estimate of the time for completion of the Services and in those circumstances the Contractor will be entitled to a reasonable extension to complete the Services.
8.3 In the event of clause 8.2 where the Customer is of the opinion that the delay may cause the Customer loss or damage then the Customer may give written notice to the Contractor to terminate the Agreement in which event the Customer has no obligation to pay for any uncompleted Services but must pay for all Services completed up to the date of termination.
9. Variations to the Services
9.1 The Customer:
(a) may require a variation (the “Variation”) to the Services. Any request must be in writing setting out full details of such Variation. The Contractor will provide a quotation for performing the Services as varied which additional sum will be added to the Price if accepted by the Customer. If the Customer does not accept the quotation, the Contractor is not obliged to carry out the Variation; and
(b) must pay for the Variation in the manner and at the time set out in the Contractor’s quotation.
9.2 The Contractor, during the Term:
(a) may change, amend, alter (the “Alteration”) the Services or the terms in this Agreement at its own discretion and as it thinks relevant and necessary and will post on the Contractor’s website; and
(b) if the Customer does not agree with the Alteration then it may issue a notice to terminate this Agreement in accordance with the Termination clause.
10.1 The Customer undertakes to keep all information which the Customer acquires from the Contractor or about the Contractor strictly private and confidential and must not disclose that information to any person without the Contractor’s prior written consent.
10.2 The Contractor undertakes to keep all information which the contractor acquires from the Customer or about the Customer’s business strictly private and confidential and will not disclose that information to any person without the Customer’s prior written consent. The Contractor will not use any such confidential information so acquired except for the proper purpose of performing and providing the Services.
11. Intellectual Property
11.1 If the Services involve the creation of any intellectual property including any copyrightable materials or works then unless otherwise expressly agreed in writing, the Customer acknowledges that the Contractor is the legal and beneficial owner of all such intellectual property.
11.2 Notwithstanding clause 11.1, provided the Customer has paid the Contractor’s Fees in full, the Customer will have a perpetual non-exclusive and non-transferrable license to use the Contractor’s intellectual property but only to the extent that such is reasonably necessary to enable the Customer to enjoy the Services.
11.3 Subject to clause 11.2, where the Contractor uses the Contractor’s intellectual property to carry out or produce or deliver the Services, nothing herein gives the Customer any interest, right or title in the Contractor’s intellectual property.
11.4 Where the Customer provides access to the Contractor to the Customer’s intellectual property, nothing in the Agreement gives the Contractor any interest in the Customer’s intellectual property and the Contractor will only use the Customer’s intellectual property for the proper performance of the Services.
12.1 The Contractor may use sub-contractors to provide any of the Services. In such circumstances, it will be the responsibility of the Contractor to ensure that:
(a) the sub-contractors so engaged are suitably qualified, hold all necessary licenses, and are otherwise able to perform the Services in a proper and workman-like manner; and
(b) the sub-contractors so engaged do not by act or omission do or not do anything that would if done or not done by the Contractor be a breach any of the terms of this Agreement.
12.2 The Contractor is solely responsible for all fees payable to sub-contractors.
12.3 The Customer acknowledges and agrees that the sub-contractors may have their own terms of engagement which may be a requirement for providing services to the Contractor on behalf of the Customer (the “3rd Party Terms”).
12.4 The Customer acknowledges and agrees that the 3rd Party terms are separate and independent to the terms in this Agreement and in no way affects its and the Contractor’s obligations stated in this Agreement.
12.5 The Customer indemnifies as a continuing indemnity the Contractor, its other sub-contractors, employees and agents from any losses, expenses, liabilities, damages and costs (including, legal costs on a full indemnity basis) it incurs due to the sub-contractors and/or breach of the 3rd Party Terms.
13. Over-riding Provision
13.1 So that the Contractor may attend to providing the Services immediately, it may require money in advance from the Customer. Due to the nature of the Contractor’s business, without money in advance, the Contractor cannot continue with the Services. The Customer is to deposit the funds using one of the methods described in the invoice and state the Contractor’s Reference No. (if supplied to you).
13.2 In the event that the Contractor’s Fees and charges are not paid by the Customer in accordance with this Agreement then the Contractor may, at its sole discretion, choose to suspend the Services, including those all ready provided or created. This includes disabling the Customer’s website and/or email services. Specifically, failure to pay for Services within the period stated in the Agreement will result in an interruption to the Services which will impact on the Customer’s ability to carry out its business activities as well as the business activities of its clients where its clients rely on the continuation of the Services provided by the Contractor to the Customer.
14. Indemnities and Limitation of Liability
14.1 Notwithstanding any other provision in this Agreement, the Customer indemnifies as a continuing indemnity the Contractor, its employees, sub-contractors and agents against any action or claim of any nature arising directly or indirectly out of, or caused or contributed to by, any act or omission or breach of statutory duty on the part of the Customer, its employees, other contractors and agents.
14.2 Where a party suffers loss or damage as a result partly of its own breach, and partly of a breach by the other party, of this Agreement, a claim in respect of that loss or damage will not be defeated by reason of the breach by the person suffering the loss or damage, but the losses or damages recoverable in respect thereof will be reduced to such extent as a Court thinks just and equitable having regard to the claimant’s share in the responsibility for that loss or damage.
14.3 To the extent permitted by law, each party excludes:
(a) from this Agreement, all conditions, warranties and terms implied by statute, general law or custom; and
(b) all liability to the other for consequential or indirect damages in relation to the Services, any delay or failure in supplying the Services, or this Agreement to the extent that such damages comprise loss of profit even if:
(i) the Contractor knew they were possible; or
(ii) they were otherwise foreseeable, including without limitation of loss of profits suffered as a result of claims by any third person, such as the Customer’s Personnel.
14.4 Notwithstanding any other clauses in this Agreement, the liability of the Contractor is limited to the total amount of the Contractor’s Fees or to the quantifiable loss or damage, whichever is the lower.
15.1 Notwithstanding any other provisions in this Agreement, the Contractor may terminate this Agreement without notice to the Customer if the Customer:
(a) has not paid the Contractor invoice issued in accordance with clause 3, and any penalties issued in accordance with clause 4, within thirty (30) days (and not business days) of receipt of that invoice, and the Contractor has given the Customer a first notice seven (7) days (and not business days) after the due date of the invoice, specifying the failure to pay and giving the Customer fourteen (14) days (and not business days) to pay the invoice;
(b) the Customer fails or refuses to comply with any lawful directions given by the Contractor for it to provide the Services in accordance with this Agreement;
(c) if, in the reasonable opinion of the Contractor, it believes that the Customer has breached or will be breaching relevant clauses relating to Confidentiality, Intellectual Property and Privacy in this Agreement.
(d) the Customer is in breach of a material term of this Agreement and such breach, if capable of rectification, is not rectified within ten (10) clear days (and not business days) of the Contractor giving the Customer a notice in writing requiring rectification of that breach;
(e) if the Customer is convicted of any offence involving fraud or dishonesty or any other offence (except a traffic offence) which is punishable by imprisonment (whether or not imprisonment actually occurs);
(f) if the Customer has a trustee in bankruptcy appointed or a petition is presented for the bankruptcy of the Customer; or
(g) the Customer is unable to pay its debts as they fall due or enters into an arrangement with its creditors to compound its debts generally.
Each of the above paragraphs is to be construed independently; and no paragraph limits the generality of any other paragraph.
15.2 Notwithstanding clause 15.1, either the Contractor or the Customer may terminate this Agreement for any other reason by giving not less than 7 days notice, specifying the last day on which the Contractor is to cease to carry out the activities contemplated by this Agreement.
16. Consequences of Termination
16.1 On termination of this Agreement the Contractor will immediately cease providing the Services.
16.2 On termination of this Agreement the Customer will pay out any amount which has accrued to the Contractor pursuant to clauses 3 and 4 but which has not been paid without any right to set-off any amount.
16.3 On termination of this Agreement, either party will deliver, and will procure its employees, contractors and agents to deliver, to the other party (“Party A”) all property of Party A or of any client or customer of Party A which is in their possession or under their control. The obligation in this clause includes (but is not limited to) all records of Party A or records pertaining to a client or customer of Party A and all confidential information (regardless of the media in which such records or confidential information are stored and whether or not such media are the property of the other party). Property in any such media will pass to Party A on termination of this Agreement.
16.4 Notwithstanding clause 16.3, if Party A in clause 16.3 is the Customer then the Contractor may at its sole discretion store some of the Customer’s property, such as, its website and associated data such as website files and electronic files, for up to one (1) year after the date of termination and thereafter, deliver them in accordance with clause 16.3. The storage and delivery may incur a charge to be paid by the Customer to the Contractor which, the Contractor will inform the Customer as soon as possible upon termination.
16.5 The termination of this Agreement will be without prejudice to any rights which have accrued to any of the parties under this Agreement.
17.1 The Contractor may assign its right or obligations under this Agreement to a third party and will give notice to the Customer prior to the assignment.
17.2 The Customer will not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of the Contractor (which consent may not be unreasonably withheld or delayed) and no assignment of any obligations will be effective until the Customer has covenanted in favour of, and in a form satisfactory to, the Contractor to assume and to be bound by the obligations assigned.
17.3 On the assignment of this Agreement:
(a) the Contractor who is the assignor is hereby released from any liability for any cause of action which arises in relation to an action or event after the said assignment; and
(b) the Customer who is the assignor is hereby not released from any liability for any cause of action which arises in relation to an action or event after the said assignment.
Any waiver by either party of a breach of any provision of this Agreement will not prevent the subsequent enforcement of that provision and will not be considered as a waiver of any subsequent breach of the same provision or any other provision of this Agreement.
19. Entire Agreement
This Agreement and the agreements and documents referred to in it constitute the entire agreement between the parties and supersede other prior agreements, promises, representations, undertakings or implications (whether oral or in writing) in relation to the subject matter of this Agreement and those other agreements and documents.
20. No Representation
The Customer hereby acknowledges that, except as expressly provided in this Agreement, this Agreement has not been entered into in reliance upon any representation.
No variation or amendment of this Agreement will bind either party unless agreed to in writing by duly authorised representatives of both parties as specifically being a variation or amendment of this Agreement.
If any provision of this Agreement is or becomes illegal, void, invalid or unenforceable in whole or part, this Agreement will continue to be valid and enforceable as to its other provisions and the remaining liabilities of the parties under this Agreement will not be affected or impaired.
23.1 Neither party will use or disclose any Personal Information other than for the purpose of discharging their obligations under this Agreement.
23.2 Both parties agree to comply at all times with the National Privacy Principles and any applicable Privacy Code, and to take all appropriate steps to protect the Personal Information in its possession from misuse or loss.
23.3 The parties will, on expiration or termination expiration of this Agreement, and at the sole option of the other party:
(a) return to the other party copies of all Personal Information belonging to the other party; or
(b) destroy or de-identify all copies of such Personal Information.
24.1 All notices and other communications relating to this Agreement:
(a) must be in English and in writing;
(b) must be delivered by hand or sent by post, facsimile or electronic mail (email);
(c) subject to clause 24.3, must be delivered or sent to the party concerned at the relevant address or number (as appropriate) of that party set out in clause 24.2; and
(d) will take effect:
(i) if delivered, upon delivery, reasonable proof of which is required;
(ii) if posted, on the date when, in the ordinary course of business, such notice or other communication would be delivered to the addressee; and
(iii) if sent by facsimile or email, upon delivery, reasonable proof of which is required;
provided that, if any communication would otherwise be regarded as delivered on a non-business day or after 5.00 pm on a business day, it will instead be regarded as delivered at 10.00 am on the next business day.
24.2 The initial details for the purposes of clause 24.1 are:
Address: G.P.O Box 2060, Sydney NSW 2001
Facsimile No: +61 2 8456 5799
Marked for the attention of: Mr. Chris Bryant, Company Director
As stated in the Agreement.
24.3 A party may notify the other party of a change to any of its details set out in clause 24.2 provided that a notification will be effective only on the date specified in the notification as the date on which the change is to take place or, if no date is specified or the date specified is less than ten (10) business days after the date on which notice is given, the date falling ten (10) clear business days after notice of the change has been given.
25. Dispute Resolution
25.1 If a dispute arises out of, or relates to, this Agreement the parties will endeavour to settle the dispute by mediation administered by a mutually acceptable mediator. If the parties are unable to agree as to a suitable mediator, the mediation will be administered by Australian Commercial Disputes Centre Ltd A.C.N. 003 042 840 (“ACDC “).
25.2 If the dispute has not been settled within twenty eight (28) days (or such other period as is agreed in writing by the parties) after the appointment of the mediator, the dispute will be submitted to expert determination administered by ACDC, and subject to the ACDC Rules for Expert Determination operating at the time the dispute is referred to ACDC.
25.3 The parties will accept the determination of the expert as final and binding. The expert will be a person agreed between the parties but, failing agreement, the expert will be a person appointed by ACDC. The expert will not be the same person as the mediator.
25.4 Any disputes regarding this Agreement will be heard in Sydney, New South Wales.
25.5 The costs of any dispute resolution will be borne by the parties to that dispute as agreed at the mediation or as determined by the expert (as applicable).
25.6 Until a party has complied with the preceding provisions of this clause that party may not commence court proceedings relating to the dispute except that nothing in this clause precludes a party seeking injunctive relief from an appropriate court.
This Agreement does not create a relationship of principal and agent, employer and employee or partnership between the Contractor and the Customer.
The Customer may accept the terms of this Agreement by:
(a) confirming its acceptance by separate correspondence or communication (including, by email);
(b) by giving the Contractor instructions, verbally (which will be confirmed in writing by the Contractor) or, in writing;
(c) after receiving the Agreement;
(d) requesting that the services commence, verbally (which will be confirmed in writing by the Contractor), or in writing; or
(e) making a payment.
Without receiving the Customer’s acceptance in any of the above manner within seven (7) days from the date it receive this Agreement, the Contractor has the opportunity to withdraw all or any of the terms set out in this Agreement.
28. Force Majeure
If a party is delayed or interrupted in, or prevented from, performing its obligations under this Agreement by any cause beyond its control, that party will not be in breach of this Agreement and the time for performance of its obligations will be extended by a period of time equal to the duration of the cause of the delay, interruption or prevention.
29. Governing Law
This Agreement will be governed by and construed in all respects in accordance with the laws in force in New South Wales, and each party hereby submits to the exclusive jurisdiction of the New South Wales Courts as regards any claim or matter arising under this Agreement.