1.1 “Authorised User” means:
(a) an employee, agent, or contractor of the Client; or
(b) any other third party authorised by the Client to use an authorised account.
1.2 “Business Day” means any day which is not a Saturday, Sunday, public holiday, special holiday, or a bank holiday in which this Contract is applied. If the giving of any notice, the making of any payment, or the doing of any act required or permitted under this Contract, the timing of which falls on a day which is not a Business Day, then the timing for such actions shall be extended and will be allowed to take place on the next Business Day, but no later.
1.3 “Client” means the person/s, entities or any person acting on behalf of and with the authority of the Client requesting the Consultant to provide the Services as specified in any proposal, quotation, order, invoice, or other documentation, and:
(a) if there is more than one Client, is a reference to each Client jointly and severally; and
(b) if the Client is a partnership, it shall bind each partner jointly and severally; and
(c) if the Client is on behalf of or part of, a Trust, shall be bound in its own capacity as a trustee; and
(d) includes the Client’s executors, administrators, successors, and permitted assigns.
1.4 “Client Data” means all the unprocessed data supplied and inputted by the Client into the secured access area for the Services from time to time in conjunction with the Services. Such data (data or information) may include, but not be limited to, still and moving images, any sound recordings, and personal data.
1.5 “Confidential Information” means information of a confidential nature whether oral, written or in electronic form including, but not limited to, this Contract, either party’s intellectual property, operational information, know-how, trade secrets, financial and commercial affairs, Contracts, client information (including but not limited to, “Personal Information” such as: name, address, D.O.B, occupation, driver’s license details, electronic contact (email, Facebook or Twitter details), medical insurance details or next of kin and other contact information (where applicable), previous credit applications, credit history) and pricing details.
1.6 “Consultant” means Interlinked Pty Ltd, its successors and assigns or any person acting on behalf of and with the authority of Interlinked Pty Ltd.
1.7 “Contract” means the terms and conditions contained herein, together with any quotation, order, invoice or other document or amendments expressed to be supplemental to this Contract.
1.8 “Cookies” means small files which are stored on a user’s computer. They are designed to hold a modest amount of data (including Personal Information) specific to a particular client and website and can be accessed either by the web server or the client’s computer. If the Client does not wish to allow Cookies to operate in the background when using the Consultant’s website, then the Client shall have the right to enable / disable the Cookies first by selecting the option to enable / disable provided on the website, prior to making enquiries via the website.
1.9 “GST” means Goods and Services Tax as defined within the “A New Tax System (Goods and Services Tax) Act 1999” (Cth).
1.10 “Intellectual Property” means all present and future rights conferred by statute, common law or equity in or in relation to business names, circuit layout, computer software, confidential information, copyright, designs, domain names, formulas, inventions, knowhow, patents, trademarks, and other results of intellectual activity in the industrial, commercial, scientific, literary and artistic field, the benefit of any application to register such a right and the benefit of any renewal or extension of such right.
1.11 “Price” means the Price payable (plus any GST where applicable) for the Products as agreed between the Consultant and the Client in accordance with clause 9 below.
1.12 “Services” means all products (which includes any content, files, information, printed or virtual material, data, hardware, software or applications (whether supplied from a third party software development company or where custom developed or programmed for the Client), brands, designs, images, graphics, pictures, trademarks, manuals, and other associated documentation and/or goods, accessories or parts) or Services (which includes any subscription services, advice or recommendations, consultancy, monitoring, data back-up or storage, strategising and analytical services, technical service, support and training, etc.) supplied by the Consultant to the Client, at the Client’s request, from time to time (where the context so permits the terms ‘Products’ or ‘Services’ shall be interchangeable for the other). Any Products supplied to the Client by the Consultant on a loan basis (for the duration of the Services):
(a) remains the Consultant’s sole property;
(b) may be changed, substituted, revoked, or repossessed by the Consultant at the Consultant’s sole discretion at any time; and
(c) is not transferable.
1.13 “Software” shall mean the programs and other operating information (including documentation) used by a computer.
1.14 “Support” means to provide direct support to the Client for technical issues in relation to the Services. Support excludes the following services:
(a) any time spent to resolve any issues with the Client’s computer system created by any operator error on the part of the Client or any action of any third parties whether authorised or unauthorised by the Client;
(b) resolving any issues created by new third party hardware or software introduced to the Client’s computer system without the Consultant’s knowledge;
(c) resolving any issues which are solely caused by the actions of third parties and originate outside of the Client’s computer system e.g.,
problems that relate to the supply of services by the Client’s internet service provider;
(d) bug fixes.
2.1 In this Contract, unless it is stated to the contrary or the context requires otherwise:
(a) words in the singular shall include the plural (and vice versa), words importing one gender shall include every gender, a reference to a person shall include any other legal entity of whatsoever kind (and vice versa) and where a word or a phrase is given a defined meaning in this Contract, any other part of speech or other grammatical form of that word or phrase has a corresponding meaning;
(b) a reference to a statue, ordinance, code, or other law includes regulations and other statutory instruments under it and consolidations, amendments, re-enactments, or replacements of any of them (whether of the same or any other legislative authority having jurisdiction);
(c) the words ‘include’ and ‘including’, and any variants of those words, will be treated as if followed by the words ‘without limitation’;
(d) a reference to dollars ($), is a reference to Australian currency;
(e) this Contract is not to be interpreted against the Consultant merely because they prepared this Contract;
(f) where a URL is mentioned, the non-operation of the “URL” will not render the rights and obligations associated with it invalid;
(g) any reference digital resource may be replaced with another digital resource that is a “copy” of the original resource; and
(h) the following order of precedence (in descending order) will be applied to resolve any conflict, ambiguity, or discrepancy in this Contract:
(i) terms and conditions of trade;
(ii) proposals; and
(iii) any schedules.
(i) any reference (other than in the calculation of consideration, or of any indemnity, reimbursement, or similar amount) to cost, expense or other similar amount is a reference to that cost exclusive of GST.
3.1 The parties acknowledge and agree that:
(a) they have read and understood the terms and conditions contained in this Contract; and
(b) the parties are taken to have exclusively accepted and are immediately bound, jointly and severally, by these terms and conditions if the Client places an order for or accepts Services provided by the Consultant.
3.2 In the event of any inconsistency between the terms and conditions of this Contract and any other prior document or schedule that the parties have entered into, the terms of this Contract shall prevail.
3.3 Any amendment to the terms and conditions contained in this Contract may only be amended in writing by the consent of both parties.
3.4 The Client acknowledges that the supply of Products on credit shall not take effect until the Client has completed a credit application with the Consultant and it has been approved with a credit limit established for the account.
3.5 In the event that the supply of Products requested exceeds the Client’s credit limit and/or the account exceeds the payment terms, the Consultant reserves the right to refuse delivery.
3.6 The Services are provided on the basis of specifications, information and instructions provided by the Client to the Consultant (whether written or verbal). The Client acknowledges that it is their responsibility to ensure that such are detailed sufficiently to satisfy the Consultant’s requirements of interpretation and understanding, as once accepted by the Client, the Consultant’s quotation shall be deemed to correctly interpret those specifications, information, and instructions. Therefore, the Consultant shall not accept any liability for the provision of Services contrary to the Client’s intention, or errors or omissions therein, due to insufficient or inadequate provision of detailed specifications, information and instructions by the Client or oversight or misinterpretation thereof, and the Consultant may charge the Client additional costs incurred, and if reasonably practical, will notify the Client of such costs before they are incurred and the Client agrees to them.
3.7 These terms and conditions may be meant to be read in conjunction with the Consultant’s proposal, and where the context so permits, the
terms ‘Services’ or ‘Products’ shall include any supply of ‘Activities’ and ‘Support’, as defined therein.
3.8 Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 9 of the Electronic Transactions Act 2000 or any other applicable provisions of that Act or any Regulations referred to in that Act.
4.1 Where the Consultant gives any advice, recommendation, information, assistance or service provided by the Consultant in relation to Products or Services (including, but not limited to, additional measures required to protect against potential security breaches or cyber-attack, etc.) supplied is given in good faith to the Client, or the Client’s agent and is based on the Consultant’s own knowledge and experience and shall be accepted without liability on the part of the Consultant, (human error is possible under these circumstances), and the Consultant shall make all effort to offer the best solution to the Client. Where such advice or recommendations are not acted upon then the Consultant shall require the Client or their agent to authorise commencement of the Services in writing. The Consultant shall not be liable in any way whatsoever for any damages or losses that occur after any subsequent commencement of the Services.
5.1 The Consultant may designate Authorised Users in accordance with approval communicated by the Client.
5.2 The Client warrants that all the information provided (whether that information is provided by an Authorised User or the Client) is accurate and complete in all respects and will update the Consultant whenever any of this information changes.
5.3 The Client is responsible for ensuring that Authorised Users comply with the Contract to the fullest extent.
6.1 The Client acknowledges and accepts that the Consultant shall, without prejudice, accept no liability in respect of any alleged or actual error(s) and/or omission(s):
(a) resulting from an inadvertent mistake made by the Consultant in the formation and/or administration of this Contract; and/or
(b) contained in/omitted from any literature (hard copy and/or electronic) supplied by the Consultant in respect of the Services.
6.2 In circumstances where the Client is required to place an order for Products, in writing, or otherwise as permitted by these terms and conditions, the Client is responsible for supplying correct order information such as, without limitation, measurements and quantity, when placing an order for Products (whether they are made to order Products or not) (“Client Error”). The Client must pay for all Products it orders from the Consultant notwithstanding that such Products suffer from a Client Error and notwithstanding that the Client has not taken or refuses to take Delivery of such Products. The Consultant is entitled to, at its absolute discretion to waive its right under this sub-clause in relation to Client Errors.
7.1 The Client shall give the Consultant not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client and/or any other change in the Client’s details (including but not limited to, changes in the Client’s name, address, contact phone or fax number/s, change of trustees, or business practice). The Client shall be liable for any loss incurred by the Consultant as a result of the Client’s failure to comply with this clause.
8.1 The Consultant will:
(a) keep the Client’s personal details, including credit card details for only as long as is deemed necessary by the Consultant;
(b) not disclose the Client’s credit card details to any third party; and
(c) not unnecessarily disclose any of the Client’s personal information, except is accordance with the Privacy Act (clause 26) or where required by law.
8.2 The Client expressly agrees that, if pursuant to this Contract, there are any unpaid charges, other amounts due and outstanding by the Client, the Consultant is entitled to immediately charge the Client’s nominated credit card for these amounts, and is irrevocably authorised to complete any documentation and take any action to recover from the credit card issuer any and all amounts which may be due by the Client pursuant to the terms of this Contract.
9.1 At the Consultant’s sole discretion, the Price shall be either:
(a) as indicated on any invoice provided by the Consultant to the Client upon placement of an order for Products; or
(b) the Price as at the date of Delivery of the Products according to the Consultant’s current price list, as previously disclosed to the Client upon the Client’s placement of an order for Products; or
(c) the Consultant’s quoted Price (subject to clause 9.3) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.
9.2 Additional and/or Varied Services:
(a) the Consultant agrees that there will be no charge in the preparation of the initial quotation, which may include Client discussions, project scoping, etc. However, in some instances the aforementioned services may be charged to the Client additionally (at the Consultant’s sole discretion).
9.3 The Consultant reserves the right to change the Price:
(a) where there is any variation to the accepted plan of scheduled Services, or instructions/specifications, which will be charged for on the basis of the Consultant’s standard hourly rates (and double such rate for any Services provided outside the Consultant’s normal business hours) and will be shown as variations on the invoice;
(b) where the performance of any contract with the Client requires the Consultant to obtain products and/or services from a third party, the contract between the Consultant and the Client shall incorporate, and shall be subject to, the conditions of supply of such products and/or services to the Consultant, and the Client shall be liable for the cost in full including the Consultant’s margin of such products and/or services;
(c) as a result of increases beyond the Consultant’s reasonable control in the cost of materials or labour, or due to fluctuations in currency
exchange rates;
(d) in the event that the Consultant is requested to provide on-site services, in which case a minimum call-out fee equal to one (1) hour labour (and/or two (2) hours labour for any requested provision of Services after-hours), plus travel, parking costs and Products, shall apply.
9.4 Notwithstanding clause 9.3, the Client acknowledges that additional charges may apply to certain Services and support provided by the Consultant (including, but not limited to, reconfiguration of the Client’s computer or network). Any such charges shall be shown as a variation to the original Price.
9.5 Where a contract term is stipulated, the Consultant may adjust the monthly charges from time to time upon providing one (1) month’s written
notice to the Client. Services are billed to the Client one (1) month in advance (unless otherwise specified).
9.6 Variations will be charged for on the basis of the Consultant’s quotation, and will be detailed in writing, and shown as variations on the Consultant’s invoice. The Client shall be required to respond to any variation submitted by the Consultant within ten (10) working days. Failure to do so will entitle the Consultant to add the cost of the variation to the Price. Payment for all variations must be made in full at the time of their completion.
9.7 At the Consultant’s sole discretion, a reasonable non-refundable deposit may be required upon placement of an order for Products or Services, in accordance with any quotation provided by the Consultant or as notified to the Client prior to the placement of an order for Products.
9.8 Time for payment for the Products being of the essence, the Price will be payable by the Client on the date/s determined by the Consultant, which may be:
(a) by way of instalments/progress payments in accordance with the Consultant’s payment schedule;
(b) for approved credit account holders fourteen (14) days following the date of any invoice; or
(c) the date specified on any invoice or other form as being the date for payment; or
(d) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Client by the Consultant.
9.9 Payment may be made by electronic/on-line banking, credit card (a surcharge may apply per transaction), or by any other method as agreed to between the Client and the Consultant.
9.10 The Consultant may in its discretion allocate any payment received from the Client towards any invoice that the Consultant determines and may do so at the time of receipt or at any time afterwards. On any default by the Client the Consultant may re-allocate any payments previously received and allocated. In the absence of any payment allocation by the Consultant, payment will be deemed to be allocated in such manner as preserves the maximum value of the Consultant’s Purchase Money Security Interest (as defined in the PPSA) in the Products.
9.11 The Client shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Client by the Consultant nor to withhold payment of any invoice because part of that invoice is in dispute. Once in receipt of an invoice for payment, if any part of the invoice is in dispute, then the Client must notify the Consultant in writing within three (3) business days, the invoice shall remain due and payable for the full amount, until such time as the Consultant investigates the disputed claim, no credit shall be passed for refund until the review is completed. Failure to make payment may result in the Consultant placing the Client’s account into default and subject to default interest in accordance with clause 22.1.
9.12 Unless otherwise stated the Price does not include GST. In addition to the Price, the Client must pay to the Consultant an amount equal to any GST the Consultant must pay for any supply by the Consultant under this or any other agreement for the sale of the Products. The Client must pay GST, without deduction or set-off of any other amounts, at the same time and on the same basis as the Client pays the Price. In addition, the Client must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.
10.1 When the Client uses the Services, the Client must:
(a) comply with all laws, all directors by a regulator, all notices issued by authorisation of, or under, law (e.g., Copyright Act 1968 (Cth)) and reasonable directions by the Consultant;
(b) keep the Client’s account information, password, data, and Products confidential and secure. The Client remains responsible for any use or misuse of such;
(c) follow any reasonable instructions provided by the Consultant in relation to the Services;
(d) access and use the Services solely in accordance with these terms and conditions and any reasonable instructions provided by the Consultant;
(e) employ back-up power and surge protectors at the Client’s premises;
(f) respond promptly to the Consultant’s communications in relation to the Services;
(g) provide accurate and prompt responses to the Consultant’s requests for any information or documentation reasonably required by the
Consultant to provide the Services;
(h) maintain adequate security precautions in connection with the Client’s use of the Services (including, but not limited to, failure to use/maintain anti-virus Software, accessibility to the data via insecure internet connections, insecure passwords or unsecure access to passwords, leaving active connection to the hosted solution unattended or any other event which on the basis of a reasonable test would in the opinion of the Consultant be inadequate etc.);
(i) ensure that the Consultant at all times is granted all necessary licences, permissions and access reasonably required by the Consultant to perform the Support including without limitation:
(i) physical access to any relevant premises and hardware;
(ii) logon and password access to any relevant computer systems; and
(iii) remote online access to any relevant computer systems where available.
(j) remove most of the downtime risk associated with an “in-house” computer system;
(k) failure by the Client to comply with clause 10.1 will entitle the Consultant, at its option, to suspend the Support without liability until such time as clause 10.1 is complied with.
10.2 The Client must not:
(a) use, or attempt to use, or permit another person to use or attempt to use, the Services:
(i) so as to cause offence, to defame, abuse, communicate obscenities, menace or annoy;
(ii) for any purpose or activity of an illegal or fraudulent nature in any jurisdiction, including damaging any property or injuring or killing any person, to breach the security of any computer network (hacking), to breach any person’s privacy, or to distribute unsolicited software or junk mail;
(iii) for advertising purposes without the Consultant’s express written consent;
(iv) to breach any of the Intellectual Property rights held by the Consultant or any third party;
(v) to transmit, publish or communicate materials which is defamatory, offensive, abusive, indecent, menacing or unwanted;
(vi) to expose the Consultant to liability (including any claims for damages);
(vii) to install or store any Software applications, code or scripts on or through the Services unless prior written approval from the Consultant has been obtained;
(viii) to disable or circumvent any protection or disabling mechanism related to the Services;
(ix) to store, access or operate any data, code, or Software on, or in connection with, the Software that could be categorised or identified as:
(a) a computer virus or malicious code;
(b) pornographic material; or
(c) “warez” or associated with “warez”.
(x) in any way which damages, interferes with or interrupts the Services, or a supplier’s network used to provide the Services;
(xi) to intercept or attempt to intercept any communication not otherwise intended for the Client;
(xii) contact the Consultant’s suppliers or the wholesale / carrier or third party provider of a service in relation to the Services or service faults. Suppliers may impose fees for doing so and these fees will be passed onto the Client. They may, however, contact the Client in relation to any reported service difficulties in relation to appointment making and service restoration, and for this reason the Consultant will needs to provide the Client contact details to such parties;
(xiii) logon to an account that the Client is not authorised to access;
(xiv) access data or take any action to obtain services not intended for the Client;
(xv) attempt to probe, scan or test the vulnerability of any system, subsystem or network;
(xvi) tamper, hack, modify or otherwise corrupt or breach security or authenticity measures without proper authorisation;
(xvii) send spam or other duplicative or unsolicited messages in violation of applicable laws including without limitation the Spam Act 2003 (Cth);
(xviii) do anything that prevents or hinders the Consultant from providing Support Services to any other person.
(b) the Client acknowledges that spamming (i.e., the sending of unsolicited email), email address cultivation, or any unauthorised collecting of email addresses without prior notification of the email address owner is strictly prohibited;
(c) the Consultant at its sole discretion acting reasonably shall be entitled to determine when there has been a breach of clause 10.2 and without limiting any other provision of these terms and conditions, the Consultant shall be entitled without liability to take such actions as it deems appropriate in the circumstances.
10.3 If, in the Consultant’s opinion, the Services are being used by anyone in breach of these terms and conditions (including clause 10) or internet etiquette, the Consultant may:
(a) refuse to post such infringing information to public areas;
(b) remove, review or edit such infringing information from any computer on the Consultant’s network, with the exception of private electronic
messages;
(c) discontinue any infringing communication;
(d) suspend the Services indefinitely, or for a specific period;
(e) terminate the Services, and refuse to provide the Services to the Client, or the Client’s associates, in the future;
(f) inform appropriate government and regulatory authorities of suspected illegal or infringing conduct.
10.4 The Client authorises the Consultant to delete without notice or liability any information or materials found on the Products (or equipment controlled by the Consultant) that is found to be of an obscene nature, unauthorised, unlawful, uncollected for an excessive period of time or excessive in volume.
10.5 Back-ups
(a) the Consultant makes no warranties or guarantees, implied or express, in respect of the retention of or continued accessibility of any back- ups in connection with the Services;
(b) the Client acknowledges that the Consultant has recommended the Client to take reasonable steps to back-up the Client Data separately from the Services; and
(c) the Consultant will put in place and manage back-up procedures described in the Consultant’s quotation or proposal and/or other written
communication from the Consultant to the Client.
11.1 The Consultant will make best efforts to ensure that the Client receives continual and uninterrupted Services (including, but not limited to, IT support, Cloud backup/storage services, and monitoring/testing services) for the duration of this Contract, however:
(a) the Consultant does not in any way warrant or otherwise guarantee the availability of the Services, which shall be subject to events/circumstances beyond the control of the Consultant. In no event though, shall the Consultant be liable to the Client for damages (including loss of income) resulting from or in relation to any failure or delay (including server downtime, programming errors, etc.) of the Consultant to provide Services under this Contract, or any loss of data, if such delays or failures are due to circumstances beyond the Consultant’s control. Such a failure or delay shall not constitute a default under this Contract; and
(b) any time specified by the Consultant for provision of the Services is an estimate only and the Consultant will not be liable for any loss or damage incurred by the Client as a result of provision being late. However, both parties agree that they shall make every endeavour to enable the Services to be provided at the time and place as was arranged between both parties. In the event that the Consultant is unable to provide the Services as agreed solely due to any action or inaction of the Client, then the Consultant shall be entitled to:
(i) charge the Client additionally for re-providing the Services at a later time and date (and any storage fees for Products); or
(ii) subject to clause 24, terminate the Contract.
11.2 The Consultant may, at their sole discretion, limit or deny access to the Services if, in the judgement of the Consultant, such limitations or denials of access are required to assure the security of the network, the integrity of the network structure, or to prevent damage to the network.
11.3 It shall be the Client’s responsibility to ensure that they have adequate data available for the provision of the Services. The Consultant shall
not be responsible for any costs incurred by the Client in the event the Client’s data limit is reached and/or exceeded.
12.1 Delivery (“Delivery”) of the Products is taken to occur at the time that the Consultant (or the Consultant’s nominated carrier) delivers the Products to the Client’s nominated address even if the Client is not present at the address.
12.2 The cost of Delivery will be payable by the Client in accordance with the quotation provided by the Consultant to the Client, or as otherwise notified to the Client prior to the placement of an order for Products.
12.3 The Consultant may deliver the Products in separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.
12.4 The Client must take Delivery by receipt or collection of the Products whenever they are tendered for Delivery.
12.5 Risk of damage to or loss of the Products passes to the Client on Delivery and the Client must insure the Products on or before Delivery.
12.6 If any of the Products are damaged or destroyed following Delivery but prior to ownership passing to the Client, the Consultant is entitled to receive all insurance proceeds payable for the Products. The production of these terms and conditions by the Consultant is sufficient evidence of the Consultant’s rights to receive the insurance proceeds without the need for any person dealing with the Consultant to make further enquiries.
12.7 If the Client requests the Consultant to leave Products outside the Consultant’s premises for collection or to deliver the Products to an unattended location, then such Products shall be left at the Client’s sole risk.
13.1 The Consultant may need to access the property in order to provide the Services. The Client agrees to provide the Consultant safe access to the property to:
(a) install any Products and to facilitate the provision of Services to the Client;
(b) inspect, test, maintain and repair or replace the Products; and
(c) recover the Products after the Services have been terminated. The Consultant shall not be liable for any costs of removing the Products or remediation of the property.
13.2 If the Client does not own the property, it is the Client’s responsibility to get the owner’s permission for the Consultant to access the property and install any Products.
13.3 The Client owes the Consultant the value of the Products as a debt due if the Consultant cannot access the property to recover it, or in the event the Products are lost or damaged.
14.1 The Client and the Consultant shall comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities that may be applicable to the Services.
15.1 The Consultant and the Client agree that the Client’s obligations to the Consultant for the provision of Services shall not cease (and ownership of any Products shall not pass) until:
(a) the Client has paid the Consultant all amounts owing to the Consultant; and
(b) the Client has met all of its other obligations to the Consultant.
15.2 Receipt by the Consultant of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised.
15.3 It is further agreed that, until ownership of the Products passes to the Client in accordance with clause 15.1:
(a) the Client is only a bailee of the Products and must return the Products to the Consultant on request;
(b) the Client holds the benefit of the Client’s insurance of the Products on trust for the Consultant and must pay to the Consultant the proceeds of any insurance in the event of the Products being lost, damaged or destroyed;
(c) the Client must not sell, dispose, or otherwise part with possession of the Products other than in the ordinary course of business and for market value. If the Client sells, disposes or parts with possession of the Products then the Client must hold the proceeds of any such act on trust for the Consultant and must pay or deliver the proceeds to the Consultant on demand;
(d) the Client should not convert or process the Products or intermix them with other goods but if the Client does so then the Client holds the resulting product on trust for the benefit of the Consultant and must sell, dispose of or return the resulting product to the Consultant as it so directs;
(e) the Client irrevocably authorises the Consultant to enter any premises where the Consultant believes the Products are kept and recover possession of the Products;
(f) the Consultant may recover possession of any Products in transit whether or not Delivery has occurred;
(g) the Client shall not charge or grant an encumbrance over the Products nor grant nor otherwise give away any interest in the Products while they remain the property of the Consultant; and
(h) the Consultant may commence proceedings to recover the Price of the Products sold notwithstanding that ownership of the Products has not passed to the Client.
16.1 In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.
16.2 Upon assenting to these terms and conditions in writing the Client acknowledges and agrees that these terms and conditions constitute a security agreement for the purposes of the PPSA and creates a security interest in all Products that have previously been supplied and that will be supplied in the future by the Consultant to the Client, and the proceeds from such Products.
16.3 The Client undertakes to:
(a) promptly sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which the Consultant may reasonably require to;
(i) register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;
(ii) register any other document required to be registered by the PPSA; or
(iii) correct a defect in a statement referred to in clause 16.3(a)(i) or 16.3(a)(ii);
(b) indemnify, and upon demand reimburse, the Consultant for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register established by the PPSA or releasing any Products charged thereby;
(c) not register a financing change statement in respect of a security interest without the prior written consent of the Consultant;
(d) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Products or the proceeds of such Products in favour of a third party without the prior written consent of the Consultant;
(e) immediately advise the Consultant of any material change in its business practices of selling the Products which would result in a change in proceeds derived from such sales.
16.4 The Consultant and the Client agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.
16.5 The Client waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
16.6 The Client waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
16.7 Unless otherwise agreed to in writing by the Consultant, the Client waives their right to receive a verification statement in accordance with section 157 of the PPSA.
16.8 The Client must unconditionally ratify any actions taken by the Consultant under clauses 16.3 to 16.5.
16.9 Subject to any express provisions to the contrary (including those contained in this clause 16), nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.
17.1 In consideration of the Consultant agreeing to supply the Products and/or provide its Services, the Client grants the Consultant a security interest by way of a floating charge (registerable by the Consultant pursuant to the PPSA) over all of its present and after acquired rights, title and interest (whether joint or several) in all other assets that is now owned by the Client or owned by the Client in the future, to the extent necessary to secure the repayment of monies owed under this Contract for provision of the Products and/or Services under this Contract and/or permit the Consultant to appoint a receiver to the Client in accordance with the Corporations Act 2001 (Cth).
17.2 The Client indemnifies the Consultant from and against all the Consultant’s costs and disbursements including legal costs on a solicitor and
own client basis incurred in exercising the Consultant’s rights under this clause.
17.3 In the event that the Client defaults or breaches any term of this Contract and as a result, the security provided in clauses 15.1,16.2 and 17.1 as applicable, is deemed insufficient by the Consultant to secure the repayment of monies owed by the Client to the Consultant, the Client hereby grants the Consultant a security interest as at the date of the default, by way of a charge, that enables the right and entitlement to lodge a caveat over any real property and or land owned by the Client now, or owned by the Client in the future, to secure the performance of the Client of its obligations under these terms and conditions (including, but not limited to, the payment of any money.
18.1 The Client must inspect the Products on Delivery and must within seven (7) days of Delivery notify the Consultant in writing of any evident defect/damage, shortage in quantity, or failure to comply with the description or quote. The Client must notify any other alleged defect in the Products as soon as reasonably possible after any such defect becomes evident. Upon such notification the Client must allow the Consultant to inspect the Products.
18.2 Under applicable State, Territory and Commonwealth Law (including, without limitation the CCA), certain statutory implied guarantees and warranties (including, without limitation the statutory guarantees under the CCA) may be implied into these terms and conditions (Non- Excluded Guarantees).
18.3 The Consultant acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.
18.4 Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, the Consultant makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Products. The Consultant’s liability in respect of these warranties is limited to the fullest extent permitted by law.
18.5 If the Client is a consumer within the meaning of the CCA, the Consultant’s liability is limited to the extent permitted by section 64A of Schedule 2.
18.6 If the Consultant is required to replace the Products under this clause or the CCA, but is unable to do so, the Consultant may refund any money the Client has paid for the Products.
18.7 If the Client is not a consumer within the meaning of the CCA, the Consultant’s liability for any defect or damage in the Products is:
(a) limited to the value of any express warranty or warranty card provided to the Client by the Consultant at the Consultant’s sole discretion;
(b) limited to any warranty to which the Consultant is entitled, if the Consultant did not manufacture the Products;
(c) otherwise negated absolutely.
18.8 Subject to this clause 18, returns will only be accepted provided that:
(a) the Client has complied with the provisions of clause 18.1; and
(b) the Consultant has agreed that the Products are defective; and
(c) the Products are returned within a reasonable time at the Client’s cost (if that cost is not significant); and
(d) the Products are returned in as close a condition to that in which they were delivered as is possible.
18.9 Notwithstanding clauses 18.1 to 18.8 but subject to the CCA, the Consultant shall not be liable for any defect or damage which may be caused or partly caused by or arise as a result of:
(a) the Client failing to properly maintain or store any Products;
(b) the Client using the Products for any purpose other than that for which they were designed;
(c) the Client continuing the use of any Products after any defect became apparent or should have become apparent to a reasonably prudent operator or user;
(d) the Client failing to follow any instructions or guidelines provided by the Consultant;
(e) fair wear and tear, any accident, or act of God.
18.10 In the case of second-hand Products, unless the Client is a consumer under the CCA, the Client acknowledges that it has had full opportunity to inspect the second-hand Products prior to Delivery and accepts them with all faults and that to the extent permitted by law no warranty is given by the Consultant as to the quality or suitability for any purpose and any implied warranty, statutory or otherwise, is expressly excluded. The Client acknowledges and agrees that the Consultant has agreed to provide the Client with the second-hand Products and calculated the Price of the second- hand Products in reliance of this clause 18.10.
18.11 The Consultant may in its absolute discretion accept non-defective Products for return in which case the Consultant may require the Client to pay handling fees of up to twenty percent (20%) of the value of the returned Products plus any freight costs.
18.12 Notwithstanding anything contained in this clause if the Consultant is required by a law to accept a return, then the Consultant will only accept a return on the conditions imposed by that law.
18.13 Subject to clause 18.1, customised, or non-stocklist items or Products made or ordered to the Client’s specifications are not acceptable for
credit or return.
19.1 If during the course of providing the Services, the Consultant develops, discovers, or puts into operation a new concept, product or process which is capable of being patented, then such concept, product or process shall be and remain the property of the Consultant and the Client shall not use or supply the same in any way whatsoever without first obtaining the written consent of the Consultant.
19.2 The Client warrants that all designs, specifications, information, and instructions to the Consultant will not cause the Consultant to infringe any patent, registered design, or trademark in the execution of the Client’s order. Furthermore, the Client agrees to indemnify, defend, and hold the Consultant harmless from all loss incurred or suffered by the Consultant arising from any claims (including third party claims) or demands against them where such loss was caused by any infringement or alleged infringement of any person’s Intellectual Property rights by the Client during its use of the Services.
19.3 Any coding and other supplied code (if any) remains the Intellectual Property of the Consultant. Copying or disseminating the code for any purpose whatsoever is strictly forbidden and will be a breach of copyright.
19.4 Where the Consultant has developed Software (and associated documentation) databases, training materials, electronic tools and/or for any of the Consultant’s source code (“Tools”), then a copyright in those Tools shall remain vested in the Consultant and the Consultant retains ownership and all Intellectual Property rights thereof but grants the Client a non-exclusive and non-transferable licence for its use (solely in relation to the operation of the Client’s own business). The Client will use any Tools supplied by the Consultant, and identified as such, strictly in terms of the licence (or any other conditions imposed by the Consultant) under which it is supplied. The Client further agrees that they shall not without the Consultant’s prior written consent:
(a) use in any way, or rely on the Tools for any purpose other than what it was designed or is suitable for;
(b) copy, reproduce, translate, adapt, vary, merge, modify, or create any derivative work based on the Tools;
(c) reverse engineer, decompile, disassemble, reconfigure or otherwise attempt to discover the source code of the Software, or assist another party to do the same;
(d) sell, market, network, transfer, lease, licence, sub-licence, rent, lend, or otherwise distribute, the Tools in any way whatsoever;
(e) combine the Tools with any other Software and/or item, etc.; or
(f) use the Tools to commit a crime (including, but not limited to, sending spam) and the Client agrees to indemnify the Consultant against any action taken by a third party against the Consultant in respect of any such infringement.
19.5 Notwithstanding anything herein, upon termination of the Contract (in accordance with clause 24) the Consultant shall revoke the licence to use and remove any Tools. Once removed, the Consultant shall accept no liability and the Client indemnifies the Consultant for any losses and/or damages (including, but not limited to, any subsequent security breach or virus infection, etc.) that may occur once the Consultant has removed their Tools.
19.6 Subject to copyright laws (and/or any other applicable copyright laws) and the conditions therein, the Client agrees that they shall not in any way sell, reproduce, adapt, distribute, transmit, publish, or create derivative works from, any part of the Software (if supplied by the Consultant) without the Consultant’s prior consent in writing.
19.7 The Client hereby authorises the Consultant to utilise images of the Services created by the Consultant in advertising, marketing, or competition material by the Consultant.
20.1 The Client warrants that:
(a) they have the legal right to supply the Client Data to the Consultant in connection with the contract (and that there are no circumstances likely to give rise to breach of any of privacy); and
(b) the Client Data contains nothing that is defamatory.
20.2 The Consultant will:
(a) only make copies of the Client Data to the extent reasonably necessary for the Services (which includes, but is not limited to, back-up security, disaster recovery and testing of the Client Data);
(b) not use, exploit, redistribute, re-disseminate, copy, or store the Client Data other than for the purposes of the Services; and
(c) take reasonable steps to protect the Client Data.
20.3 From time to time, the Consultant will be directed in writing to move data on one piece of hardware (“Copied Data”) to another, the Consultant will have the right to delete Copied Data no less than one (1) month after coping the Copied Data. The Client agrees that:
(a) in order to facilitate the movement of Copied Data, the Consultant must retain a copy of the Copied Data on its own hardware;
(b) if the Client wishes to obtain another copy of the Copied Data, it must notify the Consultant within one (1) month of the provision of the service to copy the Copied Data; and
(c) if the Client does not respond to the Consultant’s notification asking to retain the Copied Data, the Client acknowledges and agrees that
the Copied Data will be deleted.
20.4 The Client Data remains the property of the Client at all times.
20.5 On the termination of the Services or the expiry of the minimum subscription period the following shall apply:
(a) the Client shall immediately cease using the Consultant’s Intellectual Property and the Services;
(b) where the Client elects for the destruction of the Client Data, the Consultant will as soon as reasonably practicably ensure that all the Client Data is deleted from the secured access area of the website;
(c) where the Client elects for the return of the Client Data, the Client must make a written request within ten (10) Business Days after the date of the termination or expiry of the Contract (“the Request”). The Consultant shall use reasonable efforts to fulfil such a request within one (1) month of the Request or in an earlier time frame approved by the Client (“Retention Period”) provided that:
(i) the Client has paid all monthly subscription fees and any other monies owed to the Consultant as at the date of the Request; and
(ii) the Client shall pay all the costs and expenses (including, but not limited to, the costs of data extraction, transfer and migration and any compatibility issues with both parties’ technology platforms, hardware or Software incurred by the Consultant in return the Client Data (“Return Costs”).
20.6 Where the Client fails to stipulate either return or destruction of the Client Data within ten (10) Business Days, the Consultant may destroy or otherwise dispose of any of the Client Data in the Consultant’s possession and the Client shall not have any claim whatsoever after this time.
21.1 The Client acknowledges and agrees that the Consultant shall not be held responsible or liable for:
(a) any loss, corruption, or deletion of files or data (including, but not limited to, software programmes) resulting from illegal hacking of Services provided by the Consultant. The Consultant will endeavour to restore the files or data (at the Client’s cost), and it is the sole responsibility of the Client to back-up any data which they believe to be important, valuable, or irreplaceable prior to the Consultant providing the Services. The Client accepts full responsibility for the Client’s software and data and the Consultant is not required to advise or remind the Client of appropriate backup procedures (unless included as part of the Services); and
(b) any loss or damage to the Client’s software or hardware caused by any ‘updates’ provided for that software.
21.2 The Services (and any associated Software) are provided on an “as is, as available” basis. The Consultant specifically disclaims any other warranty, express or implied, including any warranty of merchantability or fitness for a particular purpose.
21.3 Subject to clause 18, the Consultant, it partners, associates, and employees shall exclude any indirect, incidental, special and/or consequential loss and/or expense, claim and/or cost (including legal fees and commissions, loss of profit, business, contracts, opportunity, goodwill, reputation and/or anticipated saving), or corruption of data suffered by the Client arising out of a breach by the Consultant of these Terms and Conditions.
21.4 The maximum liability of the Consultant under this Contract shall at no time exceed the amount of Professional Indemnity insurance cover in respect of any single act, omission, or statement, unless otherwise specified in the Consultant’s proposal.
21.5 The Client agrees to indemnify the Consultant, (including its partners, associates or employees) and any other person who may be sought to be made liable in excess of the limit of liability described in clause 21.4 in respect of any activity arising from, or connected with, this Contract in respect of any claim of whatsoever kind, that may be made by any person and any costs and expenses that may be incurred by the Consultant. All references herein to loss or damage shall be deemed to exclude loss or damage sustained by any third party in respect of which the Client is liable and responsible (as between the Client and the third party) whether by statute, contract tort or otherwise.
21.6 The liability of the Consultant to the Client shall expire twelve (12) months from the issue of the last invoice relevant to the particular project, unless in the meantime the Client has made a claim in writing to the Consultant, specifying a negligent act, omission or statement said to have caused alleged loss or damage sustained or sustainable.
21.7 Notwithstanding clauses 21.1 to 21.6, the Consultant shall not be liable for any loss or damage sustained or sustainable by the Client in relation to:
(a) errors occurring during the course of any services which are not provided by, nor the responsibility of, the Consultant;
(b) errors occurring in plans or specifications not created or prepared by the Consultant;
(c) any failure of any third party component including, without limitation, Software failure, hardware failure, network failure, or power failure;
(d) the Services being inaccessible to that Client for any reason;
(e) incorrect or corrupt data, lost data, or any inputs or outputs of the Services;
(f) computer virus, trojan and other malware in connection with the Services;
(g) security vulnerabilities in the Services or any breach of security that results in unauthorised access to or corruption of data;
(h) any failure of any third party software including, without limitation, the operating system and any other software;
(i) failure of the Client to maintain hardware sufficient to meet minimum hardware requirements for the Services;
(j) the Client’s participation in any experiments, beta software or pilots;
(k) reliance on the Consultant’s advice;
(l) the Client’s failure to observe proper safety measures and procedures;
(m) the delivery, setup and installation of Products;
(n) any harm to or claim by a third party in connection with the Services or Products;
(o) any unauthorised activity in relation to the Services;
(p) the Client’s use of or reliance on the Services for a purpose other than the business purposes of the Client or the reasonably expected purpose of the Services;
(q) any act or omission of the Consultant, its personnel or any related body corporate under or in relation to the Contract;
(r) any delay in the provision of the Services.
22.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at the Consultant’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
22.2 If the Client owes the Consultant any money, the Client shall indemnify the Consultant from and against all costs and disbursements:
(a) incurred; and/or
(b) which would be incurred and/or
(c) for which by the Client would be liable;
in regard to legal costs on a solicitor and own client basis incurred in exercising the Consultant’s rights under these terms and conditions, internal administration fees, the Consultant’s Contract fees owing for breach of these terms and conditions’, including, but not limited to, contract default fees and/or recovery costs (if applicable), as well as bank dishonour fees.
22.3 Further to any other rights or remedies the Consultant may have under this Contract, if a Client has made payment to the Consultant, and the transaction is subsequently reversed, the Client shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by the Consultant under this clause 22 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Client’s obligations under this Contract.
22.4 Without prejudice to the Consultant’s other remedies at law the Consultant shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to the Consultant shall, whether or not due for payment, become immediately payable if:
(a) any money payable to the Consultant becomes overdue, or in the Consultant’s opinion the Client will be unable to make a payment when it falls due;
(b) the Client has exceeded any applicable credit limit provided by the Consultant;
(c) the Client becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
(d) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.
23.1 Subject to clause 23.2, each party agrees to treat as confidential the other party’s confidential information and agree not to divulge it to any
third party, without the other party’s written consent.
23.2 Both parties agree to:
(a) use the confidential information of the other party only to the extent required for the purpose it was provided;
(b) not copy or reproduce any of the confidential information of the other party in any way;
(c) only disclose the other party’s confidential information to:
(i) employees and third-party providers who need access to the information and who have agreed to keep it confidential;
(ii) its legal advisers and insurance providers if those persons undertake to keep such information confidential; and
(iii) not disclose the other party’s confidential information to any person not referred to in this clause except with the other party’s prior written consent or if required by law, any stock exchange or any regulatory body.
23.3 Either party must promptly return or destroy all confidential information of the other party in its possession or control at the other party’s request
unless required by law to retain it.
23.4 confidential information excludes information:
(a) generally available in the public domain (without unauthorised disclosure under this Contract);
(b) received from a third party entitled to disclose it;
(c) that is independently developed.
24.1 Without prejudice to any other remedies the parties may have, if at any time either party is in breach of any obligation (including those relating to payment) under these terms and conditions (“the Breaching Party”) the other party may suspend or terminate the supply or purchase of Products and/or Services to the other party, with immediate effect, by providing the Breaching Party with written notice. Neither party will be liable for any loss or damage the other party suffers because one of the parties has exercised its rights under this clause.
24.2 If the Consultant, due to reasons beyond the Consultant’s reasonable control, is unable to the deliver any Products and/or Services to the Client, the Consultant may cancel any Contract to which these terms and conditions apply or cancel Delivery of Products and/or Services at any time before the Products and/or Services are delivered by giving written notice to the Client. On giving such notice the Consultant shall repay to the Client any money paid by the Client for the Products and/or Services. The Consultant shall not be liable for any loss or damage whatsoever arising from such cancellation.
24.3 The Client may cancel Delivery of the Products and/or Services by written notice served within forty-eight (48) hours of placement of the order. If the Client cancels Delivery in accordance with this clause 24.3, the Client will not be liable for the payment of any costs of the Consultant, except where a deposit is payable in accordance with clause 9.7. Failure by the Client to otherwise accept Delivery of the Products and/or Services shall place the Client in breach of this Contract.
24.4 Either party may, without liability, terminate these terms and conditions or cancel provision of the Services:
(a) if there is no agreement term specified, at any time by giving thirty (30) days’ notice to the other party;
(b) if an agreement term is specified, at any time after the end of the agreement term by giving one (1) months’ notice to the other party;
(c) failure to give notice of intention to cancel at least thirty (30) days prior to the expiration date of the agreement term, the agreement term shall automatically renew on a monthly basis, unless cancelled by way of the Client providing the Consultant with thirty (30) days’ notice.
24.5 If the Client wishes to terminate the Services during a stipulated term, the Consultant may charge the Client an early termination fee, the amount of which will depend on the Services acquired by the Client and the date of termination.
24.6 Should the Client, for any reason, cause the Services to be delayed for more than three (3) months after the acceptance date, this Contract will be terminated by the Consultant (at their sole discretion) and all Services completed, but not billed or paid, will be payable in full within seven (7) days from the date of the submitted invoice.
24.7 Upon termination of this Contract, the Consultant will immediately delete all files and content relating to the Client and the Services provided thereto.
24.8 It is the Client’s responsibility to make arrangements for the transfer of their data prior to the termination date. The Consultant accepts no liability for any loss or damage incurred by the Client as a result of the deletion of such data.
25.1 The Consultant and the Client will negotiate in good faith and use their reasonable efforts to settle any dispute that may arise out of, or relate to, this Contract, or any breach thereof. If any such dispute cannot be settled amicably through ordinary negotiations, the dispute shall be referred to the representatives nominated by each party who will meet in good faith in order to attempt to resolve the dispute. Nothing shall restrict either party’s freedom to commence legal proceedings to preserve any legal right or remedy or protect and proprietary or trade secret right.
26.1 All emails, documents, images, or other recorded information held or used by the Consultant is Personal Information, as defined and referred to in clause 26.3, and therefore considered Confidential Information. The Consultant acknowledges its obligation in relation to the handling, use, disclosure and processing of Personal Information pursuant to the Privacy Act 1988 (“the Act”) including the Part IIIC of the Act being Privacy Amendment (Notifiable Data Breaches) Act 2017 (NDB) and any statutory requirements, where relevant in a European Economic Area (“EEA”), under the EU Data Privacy Laws (including the General Data Protection Regulation “GDPR”) (collectively, “EU Data Privacy Laws”). The Consultant acknowledges that in the event it becomes aware of any data breaches and/or disclosure of the Client’s Personal Information, held by the Consultant that may result in serious harm to the Client, the Consultant will notify the Client in accordance with the Act and/or the GDPR. Any release of such Personal Information must be in accordance with the Act and the GDPR (where relevant) and must be approved by the Client by written consent, unless subject to an operation of law.
26.2 Notwithstanding clause 26.1, privacy limitations will extend to the Consultant in respect of Cookies where the Client utilises the Consultant’s website to make enquiries. The Consultant agrees to display reference to such Cookies and/or similar tracking technologies, such as pixels and web beacons (if applicable), such technology allows the collection of Personal Information such as the Client’s:
(a) IP address, browser, email client type and other similar details;
(b) tracking website usage and traffic; and
(c) reports are available to the Consultant when the Consultant sends an email to the Client, so the Consultant may collect and review that
information (“collectively Personal Information”)
If the Client consents to the Consultant’s use of Cookies on the Consultant’s website and later wishes to withdraw that consent, the Client may manage and control the Consultant’s privacy controls via the Client’s web browser, including removing Cookies by deleting them from the browser history when exiting the site.
26.3 The Client agrees that the Consultant may exchange information about the Client with those credit providers and with related body corporates for the following purposes:
(a) to assess an application by the Client; and/or
(b) to notify other credit providers of a default by the Client; and/or
(c) to exchange information with other credit providers as to the status of this credit account, where the Client is in default with other credit providers; and/or
(d) to assess the creditworthiness of the Client including the Client’s repayment history in the preceding two (2) years.
26.4 The Client consents to the Consultant being given a consumer credit report to collect personal credit information relating to any overdue payment on commercial credit.
26.5 The Client agrees that personal credit information provided may be used and retained by the Consultant for the following purposes (and for other agreed purposes or required by):
(a) the provision of Products; and/or
(b) analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to the provision of Products; and/or
(c) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client; and/or
(d) enabling the collection of amounts outstanding in relation to the Products.
26.6 The Consultant may give information about the Client to a CRB for the following purposes:
(a) to obtain a consumer credit report;
(b) allow the CRB to create or maintain a credit information file about the Client including credit history.
26.7 The information given to the CRB may include:
(a) Personal Information as outlined in 26.3 above;
(b) name of the credit provider and that the Consultant is a current credit provider to the Client;
(c) whether the credit provider is a licensee;
(d) type of consumer credit;
(e) details concerning the Client’s application for credit or commercial credit (e.g. date of commencement/termination of the credit account
and the amount requested);
(f) advice of consumer credit defaults (provided the Consultant is a member of an approved OAIC External Disputes Resolution Scheme), overdue accounts, loan repayments or outstanding monies which are overdue by more than sixty (60) days and for which written notice for request of payment has been made and debt recovery action commenced or alternatively that the Client no longer has any overdue accounts and the Consultant has been paid or otherwise discharged and all details surrounding that discharge (e.g. dates of payments);
(g) information that, in the opinion of the Consultant, the Client has committed a serious credit infringement;
(h) advice that the amount of the Client’s overdue payment is equal to or more than one hundred and fifty dollars ($150).
26.8 The Client shall have the right to request (by e-mail) from the Consultant:
(a) a copy of the Personal Information about the Client retained by the Consultant and the right to request that the Consultant correct any incorrect Personal Information; and
(b) that the Consultant does not disclose any Personal Information about the Client for the purpose of direct marketing.
26.9 The Consultant will destroy Personal Information upon the Client’s request (by e-mail) or if it is no longer required unless it is required to fulfil the obligations of this Contract or is required to be maintained and/or stored in accordance with the law.
26.10 The Client can make a privacy complaint by contacting the Consultant via e-mail. The Consultant will respond to that complaint within seven
(7) days of receipt and will take all reasonable steps to reach a decision on the complaint within thirty (30) days of receipt of the complaint. If the Client is not satisfied with the resolution provided, the Client can make a complaint to the Information Commissioner at www.oaic.gov.au.
27.1 Any written notice given under this Contract shall be deemed to have been given and received:
(a) by handing the notice to the other party, in person;
(b) by leaving it at the address of the other party as stated in this Contract;
(c) by sending it by registered post to the address of the other party as stated in this Contract;
(d) if sent by facsimile transmission to the fax number of the other party as stated in this Contract (if any), on receipt of confirmation of the transmission;
(e) if sent by email to the other party’s last known email address.
27.2 Any notice that is posted shall be deemed to have been served, unless the contrary is shown, at the time when by the ordinary course of post, the notice would have been delivered.
28.1 If the Client at any time upon or subsequent to entering in to the Contract is acting in the capacity of trustee of any trust or as an agent for a
trust (“Trust”) then whether or not the Consultant may have notice of the Trust, the Client covenants with the Consultant as follows:
(a) the Contract extends to all rights of indemnity which the Client now or subsequently may have against the Trust, the trustees and the trust fund;
(b) the Client has full and complete power and authority under the Trust or from the Trustees of the Trust as the case may be to enter into the Contract and the provisions of the Trust do not purport to exclude or take away the right of indemnity of the Client against the Trust, the trustees and the trust fund. The Client will not release the right of indemnity or commit any breach of trust or be a party to any other action which might prejudice that right of indemnity;
(c) the Client will not during the term of the Contract without consent in writing of the Consultant (the Consultant will not unreasonably withhold consent), cause, permit, or suffer to happen any of the following events:
(i) the removal, replacement or retirement of the Client as trustee of the Trust;
(ii) any alteration to or variation of the terms of the Trust;
(iii) any advancement or distribution of capital of the Trust; or
(iv) any resettlement of the trust fund or trust property.
29.1 The failure by either party to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect that party’s right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable, that provision shall be severed from this Contract, and the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
29.2 These terms and conditions and any Contract to which they apply shall be governed by the laws of New South Wales and are subject to the jurisdiction of the courts in that state. These terms prevail over all terms and conditions of the Client (even if they form part of the Client’s purchase order).
29.3 The Consultant may licence and/or assign all or any part of its rights and/or obligations under this Contract without the Client’s consent provided the assignment does not cause detriment to the Client.
29.4 The Client cannot licence or assign without the written approval of the Consultant.
29.5 The Consultant may elect to subcontract out any part of the Services but shall not be relieved from any liability or obligation under this Contract by so doing. Furthermore, the Client agrees and understands that they have no authority to give any instruction to any of the Consultant’s sub- contractors without the authority of the Consultant.
29.6 The Client agrees that the Consultant may amend their general terms and conditions for subsequent future Contracts with the Client by disclosing such to the Client in writing. These changes shall be deemed to take effect from the date on which the Client accepts such changes, or otherwise at such time as the Client makes a further request for the Consultant to provide Products to the Client.
29.7 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm, national or global pandemics and/or the implementation of regulation, directions, rules or measures being enforced by Governments or embargo, including but not limited to, any Government imposed border lockdowns (including, worldwide destination ports), etc, (“Force Majeure”) or other event beyond the reasonable control of either party. This clause does not apply to a failure by the Client to make a payment to the Consultant, once the parties agree that the Force Majeure event has ceased.
29.8 Both parties warrant that they have the power to enter this Contract and have obtained all necessary authorisations to allow them to do so, they are not insolvent and that this Contract creates binding and valid legal obligations on them.
29.9 The rights and obligations of the parties will not merge on completion of any transaction under this Contract, and they will survive the execution and Delivery of any assignment or other document entered, for the purpose of, implementing any transaction under this Contract.
29.10 If part or all of any term of this Contract is or becomes invalid, illegal or unenforceable, it shall be severed from this Contract and shall not affect the validity and enforceability of the remaining terms of this Contract.
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