Operative Provisions

1. These Terms

1.1 Application. These Terms are binding on you from the earlier of the date you agree to a Statement of Work which links these Terms, or the date you instruct us to commence any Services, and applies to all Services we undertake for you.
1.2 Term. These Terms will continue to apply to the relationship between the parties unless terminated under these Terms.

2. Services

2.1 Services. We will provide the Services subject to these Terms and Conditions.

2.2 Statements of Work from us. We may provide you with a Statement of Work in written form. Upon receipt of that Statement of Work, you may:

1. accept that order, in which case it will become a valid Statement of Work;
2. reject the order outright, in which case we will not be obliged to perform any additional Services for you;
3. inform us that you wish to negotiate the terms of the Statement of Work, in which case we will discuss the Statement of Work and endeavour to reach agreement upon a document satisfactory with both parties.

For clarity, no Statement of Work shall be valid unless both parties agree to the terms of that Statement of Work and indicate that agreement in writing.

(a) misuse or user error;
(b) your software or equipment;
(c) the delays, action, operation, inaction, or failure of any third party service, software, or equipment; or
(d) any Force Majeure Event.

2.5 Out-of-Scope Services. We may at our discretion, upon request by you, provide Out-of-Scope Services. Unless we inform you otherwise, we’ll charge the Default Rate for any Out-of-Scope Services we provide.

2.6 Right to sub-contract. We may appoint employees or agents to provide all or part of the Services. Those entities will be bound by the same obligations as us. 

3. Your Rights and Obligations

3.1 Instructions, equipment and materials. You must: 

1. give us clear instructions regarding the scope and specifications of the Services and respond to any questions we have promptly and clearly;
2. advise us of any allergies, skin issues or other information which may be relevant for the provision of our Services (and for us ensuring that your are not negatively affected by the Services);
3. provide any Client Materials necessary for us to perform the Services; and
4. respond in a timely manner if we bring an issue to your attention in relation to your software, equipment, data or network that affects the Services.

5. Products

6. Confidentiality

6.1 Confidentiality. Each party acknowledges that in the course of performing its obligations under these Terms, it may receive Confidential Information. Each party agrees not to use or disclose Confidential Information of the other party and any of that party's clients, directors, employees, contractors or agents.

6.2 Legitimate Use. Despite the clauses above, either party may use or disclose Confidential Information to the extent necessary to carry out its obligations under these Terms, comply with laws or regulators, stock exchange listing rules or obtain professional advice.

7. Intellectual Property

7.1 Intellectual Property Rights. 

1. Unless otherwise agreed, each party retains ownership of all Intellectual Property rights in material owned or created by that party independently of these Terms. None of that Intellectual Property is assigned or transferred by way of these Terms.
2. The parties agree that all Intellectual Property rights in:
1. the Services and any other material, methods or content developed by us (collectively, the Service IP); and
2. any improvements, modifications or enhancements to the Services, and any other material developed by us in the course of providing the Services, (collectively, the Service IP) will vest in and are owned by us upon creation, even if based on your suggestion or feedback.
3. Without limiting your rights at law, and subject to any conflicting rights granted by these Terms, you must not use any Service IP without our express written consent.

7.2 Client Materials. You grant us (and our employees, contractors and agents) an irrevocable, royalty-free, perpetual licence to use, copy, modify and adapt any Intellectual Property in the Client Materials as we need to provide the Services.

7.3 Third party material. We may use third party materials where needed to provide the Services. Use of third party materials may be subject to creative commons or open source licensing terms, or any third party licensing terms as notified by us to you.

8. Indemnity and Limitation of Liability

8.1 Responsibility for own actions. You agree to release and hold harmless, indemnify and defend the other against any Claim or Liability from or in relation to your own negligence or malpractice, or reckless or intentional misconduct.

8.2 Client indemnity

1. You agree to release, indemnify, defend, and hold us harmless (and our Indemnified Officers) against any Claim or Liability arising from or in relation to your misuse of the Services, the acts of anyone you allow to interact with the Services, any loss or damage caused by you, your breach of laws or third party rights (or you causing us to breach same through your instructions) or any breach of warranties under these Terms.
2. You indemnify us for any reasonable legal expenses we incur as a result of your breach of these Terms, including expenses for enforcing payment, on a solicitor and own-client basis.

1. indirect, special, pure economic or Consequential Loss (whether arising under contract or tort) are expressly excluded under these Terms;
2. all Services are provided under these Terms on an 'as is' basis and all warranties that may be implied by law or statute (other than those set out in these Terms) are excluded;
3. our liability under these Terms are limited to (at our election): 
1. in relation to Services supplying the Services again; payment of the cost of having the Services supplied again; or a refund of the amount you paid us for those Services; and
2. in relation to goods the re-supply of the goods or payment of the cost of the re-supply of the goods; or the replacement or repair of the goods or payment of the cost of replacement or repair of the goods.
4. Despite any other provision to the contrary, our total liability in connection with these Terms whether under contract or tort, will not in any circumstances exceed the maximum value equal to the total fees received by us from you in the month preceding the cause of the claim under these Terms.

9. Suspension and Force Majeure

9.1 Your Default and Suspension

1. We may suspend our Services if you fail to make due payment, you fail to perform your obligations, you are causing damage to us, our employees or property, or we suspect you’ve done something illegal or unethical.
2. Suspension of Services under this clause doesn’t affect your liability to make payment. We’ll lift the suspension when the issue giving rise to the suspension is remedied.

9.2 Force Majeure. If a party is affected by a Force Majeure Event, they must immediately notify the other party of the circumstances. The parties' obligations will be suspended for the duration of and to the extent that they are affected by the Force Majeure. However, either party may terminate these Terms if the Force Majeure continues for more than 40 days.

10. Termination

10.1 Termination for default. Either party may end these Terms immediately by written notice if the other party fails to remedy a Notice of Default within the timeframe allotted, experiences an Insolvency Event or is guilty of dishonesty, serious misconduct or serious neglect of duty. That party may also, at its discretion, terminate any other Statements of Work or other contracts that are currently on foot.

10.2 Termination by Notice. We may end a Statement of Work or these Terms by giving the you no 7 days written notice. We may also, at our discretion, terminate any other Statements of Work or other contracts that are currently on foot.

10.3 Consequences of Termination. If these Terms ends for any reason, then in addition to any other rights we may have, we may issue an invoice for Fees not previously invoiced, whether for Services or any other charges contemplated by these Terms. You must pay all of our outstanding invoices whether or not due at termination. We may also immediately terminate any other Statements of Work or other contracts currently on foot, regardless of whether termination was at our behest or not.

11. Dispute Resolution

11.1 Mediation. If a dispute arises between the parties in relation to these Terms, either party may give the other party a written notice that they intend to arrange mediation. The parties must refer the dispute to an independent mediator within 21 days of the written notice. If the parties cannot agree on a suitable mediator, either party may contact the Law Society in their state and request that they provide a mediator. The costs of the mediation must be paid by the parties in equal shares.

11.2 Legal Proceedings. No party may commence court proceedings unless the dispute remains unresolved after 28 days from the date of the written notice provided under clause 11.1.

12. Non-Solicitation

12.1 Employees and Customers. During these Terms and following for the Restraint period, you agree not to solicit, hire, entice or interfere with our customers, employees or contractors, directly or through intermediaries.

12.2 Breach. If you breach clause 12.1, you must pay us i) for a customer, 25% of all revenue generated from that customer if they cease or reduce their business with us; or ii) for an employee or contractor, 50% of their annual remuneration. We can also seek other relief or damages.

13. Privacy

13.1 Privacy Policy. You agree to our Privacy Policy and us handling personal information in accordance with it. We make no guarantees or warranties that we’ll be compliant with any foreign privacy laws, or that the Services will bring you into compliance with same.

14. General

14.1 Jurisdiction. The laws of Queensland, Australia apply to these Terms and the parties submit exclusively to the courts of that jurisdiction.

14.2 Relationship between the parties. Nothing in these Terms constitutes an agency, partnership or contract of employment, or as a guarantee of future employment or engagement. It is the express intention of the parties to deny those relationships.

14.3 Survival. The parties' rights and obligations under clauses 6, 7, 10.3 and 11 and will survive termination.

14.4 Variation. Any variation or amendment to these Terms must be in writing signed by all parties.

14.5 Giving effect to this document. Each party must do anything (including execute any document) and must ensure that its employees and agents do anything (including execute any document), that the other party may reasonably require to give full effect to this document.

14.6 Waiver. Any delay or failure to enforce any rights in relation to a breach by the other party will not be construed as a waiver of those rights.

14.7 Privacy. We will handle any information received under the services in line with our privacy policy (link). You must handle all information you receive according to the Privacy Act 1988 (Cth).

14.8 Notices and Communication. Notices must be in writing. Either party may serve any communication on the other party by sending it to that party’s email address. The parties agree  to send, receive and execute documents electronically and be bound by the terms of the Electronic Transactions Act 1999 (Cth) and the Electronic Transactions (Queensland) Act 2001 (Qld).

14.9 Non-solicitation. During these Terms and for 12 months afterwards, you can’t approach, entice or hire our employees without our express permission. If you do and they join you, you must pay us an amount equal to 50% of their new annual income.

14.10 Inconsistency with other documents. If this document is inconsistent with any other document or agreement between the parties, this document prevails to the extent of the inconsistency, except where that inconsistency arises from a Statement of Work, in which case the most recent Statement of Work will prevail.

14.11 Consents. Where these Terms states that our consent or approval is required, we may: 

1. give or withhold that consent or approval in our absolute discretion; and 
2. give that consent or approval subject to conditions, unless these Terms expressly states otherwise.

14.12 Operation of this document

1. This document contains the entire agreement between the parties about its subject matter.  Any previous understanding, agreement, representation or warranty relating to that subject matter is replaced by this document and has no further effect.
2. Any right that a person may have under this document is in addition to, and does not replace or limit, any other right that the person may have.
3. Any provision of this document which is unenforceable or partly unenforceable is, where possible, to be severed to the extent necessary to make this document enforceable, unless this would materially change the intended effect of this document.

15. Definitions and Interpretation

15.1 Definitions

In these Terms:

1. enters into a scheme of arrangement with its creditors;
2. is wound up or dissolved, or an administrator, liquidator or receiver is appointed; or
3. is placed under official management, commits an act of bankruptcy or is charged with a criminal offence.

Intellectual Property means all intellectual property rights, patents, rights to inventions, copyright and related rights, moral rights, trademarks and service marks, trade names and domain names, rights in get-up, rights to goodwill or to sue for passing off or unfair competition, rights in designs, rights in computer software, source and object code, products, programs, technology, hardware, data, database rights, rights in confidential information (including know-how, trade secrets and marketing secrets), improvements, machines, techniques, methods, and any other intellectual property rights, in each case whether registered or unregistered and including all applications (or rights to apply) for, and renewals or extensions of, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.

Liability means any liability (whether actual or prospective), loss, damage, cost or expense of any description, including legal fees on a solicitor and own client basis.

Notice of Default means a written notice that: (a) states that it is a notice of default; (b) specifies the default with sufficient detail and particulars; and (c) gives a reasonable deadline by which the default must be remedied, of not less than 5 Business Days.

The following rules of interpretation apply unless the context requires otherwise:

1. a reference to a party includes that party's permitted assigns, administrators, successors, executors, legal representatives and any novated party;
2. any reference to a trustee includes any substituted or additional trustee;
3. unless used for the usual grammatical purpose, inverted commas around a term indicate industry jargon that will be interpreted according to how that term would be understood by an individual with expertise in the relevant industry;
4. "including", "includes" or any derivation of those words does not limit the matter in question to the things specifically mentioned in the applicable context;
5. where a term is defined, other grammatical forms of that term will be taken to have the same meaning;
6. headings are for convenience and will not affect interpretation;
7. words in the singular will be taken to include the plural and also the opposite;
8. a reference to $ is a reference to Australian dollars;
9. a reference to a party's conduct includes omissions as well as acts;
10. if a party is described as having discretion in a matter, the discretion in that matter will be interpreted as sole and absolute; and
11. where a party is required to do "anything necessary", this includes executing agreements and other legal instruments.