Terms & Conditions of Trade

Definitions
Interpretation
Acceptance
Release Waiver
Authorised Users
Change in Control
Subscription Plan
Price and Payment
Terms of Use
Provision of the Services
Delivery of Products
Access
Compliance with Laws
Title
Personal Property Securities Act 2009 (“PPSA”)
Security and Charge
Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA)
Intellectual Property
Client Data
Limitation of Liability
Default and Consequences of Default
Confidentiality
Suspension and Termination
Dispute Resolution
Privacy Policy
Service of Notices
Trusts
General

1. Definitions

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 Provider 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

(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 subscription services from time to time in conjunction with the subscription 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 “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.

1.7 “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 Provider’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.

1.8 “GST” means Goods and Services Tax as defined within the “A New Tax System (Goods and Services Tax) Act 1999” (Cth).

1.9 “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.

1.10 “Price” means the Price payable (plus any GST where applicable) for the Services as agreed between the Provider and the Client in accordance with clause 9 below.

1.11 “Provider” means Enterprise Business IT Solutions Pty Ltd T/A E-bits, its successors and assigns or any person acting on behalf of and with the authority of Enterprise Business IT Solutions Pty Ltd T/A E-bits.

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 Provider 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 Provider on a loan basis (for the duration of the Services):

(a) remains the Provider’s sole property;

(b) may be changed, substituted, revoked, or repossessed by the Provider at the Provider’s sole discretion at any time; and

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 Provider’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. Interpretation

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 Provider 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) managed services agreement; 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. Acceptance

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 delivery of the Services provided by the Provider.

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 Services on credit shall not take effect until the Client has completed a credit application with the Provider and it has been approved with a credit limit established for the account.

3.5 In the event that the supply of Services requested exceeds the Client’s credit limit and/or the account exceeds the payment terms, the Provider 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 Provider (whether written or verbal). The Client acknowledges that it is their responsibility to ensure that such are detailed sufficiently to satisfy the Provider’s requirements of interpretation and understanding, as once accepted by the Client, the Provider’s quotation shall be deemed to correctly interpret those specifications, information, and instructions. Therefore, the Provider 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 Provider 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 Provider’s Managed Services Agreement, 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. Release Waiver

4.1 Where the Provider gives any advice, recommendation, information, assistance or service provided by the Provider 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 Provider’s own knowledge and experience and shall be accepted without liability on the part of the Provider, (human error is possible under these circumstances), and the Provider shall make all effort to offer the best solution to the Client. Where such advice or recommendations are not acted upon then the Provider shall require the Client or their agent to authorise commencement of the Services in writing by way of signing the Provider’s release waiver. The Provider shall not be liable in any way whatsoever for any damages or losses that occur after any subsequent commencement of the Services.

5. Authorised Users

5.1 The Provider 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 Provider 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. Errors and Omissions

6.1 The Client acknowledges and accepts that the Provider 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 Provider 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 Provider in respect of the Services.

6.2 In circumstances where the Client is required to place an order for the Services, 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 the Services (whether they are made to order Products or not) (“Client Error“). The Client must pay for all Services it orders from the Provider notwithstanding that such Services suffer from a Client Error and notwithstanding that the Client has not taken or refuses to take delivery of such Services. The Provider is entitled to, at its absolute discretion to waive its right under this sub-clause in relation to Client Errors.

7. Change in Control

7.1 The Client shall give the Provider 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 Provider as a result of the Client’s failure to comply with this clause.

8. Subscription Plan

8.1 The subscription plan shall continue for the ‘initial term” which may be twelve (12), twenty-four (24) or thirty-six (36) months and, upon expiration of this term, shall revert to a monthly roll over basis automatically, thereafter, unless agreed otherwise until terminated by either party by giving at least thirty (30) days’ written notice as defined in the Contract prior to the expiration date of the initial term or any additional term. Following receipt of notice from the Client, the provision of the Services to the Client by the Provider shall cease at the end of the notification period and the Client must reimburse the Provider (on a pro rata calculation basis) for any use of the Services above its subscription plan’s allowance.

8.2 The Client acknowledges and accepts that subscription plan fees stated will remain fixed for an initial period of twelve (12) months from the date of this Contract and will then be subject to revision on the basis of the movement in the Consumer Price Index (CPI).

8.3 Failure by the Client to maintain their subscription plan fees as agreed, then the Provider reserves the right to suspend the Services in accordance with clause 24.

9. Price and Payment

9.1 At the Provider’s sole discretion, the Price shall be either:

(a) as indicated on any invoice provided by the Provider to the Client upon placement of an order for the Services; or

(b) the Provider’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 Provider 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 Provider’s sole discretion).

9.3 The Provider 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 Provider’s standard hourly rates (and double such rate for any Services provided outside the Provider’s normal business hours) and will be shown as variations on the invoice. Payment for all variations must be made in full at their time of completion;

(b) where the performance of any contract with the Client requires the Provider to obtain products and/or services from a third party, the contract between the Provider and the Client shall incorporate, and shall be subject to, the conditions of supply of such products and/or services to the Provider, and the Client shall be liable for the cost in full including the Provider’s margin of such products and/or services;

(c) as a result of increases beyond the Provider’s reasonable control in the cost of materials or labour, or due to fluctuations in currency exchange rates;

(d) in the event that the Provider 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 Provider (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 Provider 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 Provider’s quotation, and will be detailed in writing, and shown as variations on the Provider’s invoice. The Client shall be required to respond to any variation submitted by the Provider within ten (10) working days. Failure to do so will entitle the Provider 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 Provider’s sole discretion, a reasonable deposit may be required upon placement of an order for the Services, in accordance with any quotation provided by the Provider or as notified to the Client prior to the placement of an order for the Services.

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 Provider, which may be:

(a) by way of instalments/progress payments in accordance with the Provider’s payment schedule;

(b) thirty (30) days following the end of the month in which a statement is posted to the Client’s address or address for notices;

(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 Provider.

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 Provider.

9.10 The Provider may in its discretion allocate any payment received from the Client towards any invoice that the Provider determines and may do so at the time of receipt or at any time afterwards. On any default by the Client the Provider may re-allocate any payments previously received and allocated. In the absence of any payment allocation by the Provider, payment will be deemed to be allocated in such manner as preserves the maximum value of the Provider’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 Provider 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 Provider in writing within three (3) business days, the invoice shall remain due and payable for the full amount, until such time as the Provider investigates the disputed claim, no credit shall be passed for refund until the review is completed. Failure to make payment may result in the Provider 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 Provider an amount equal to any GST the Provider must pay for any supply by the Provider 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. Terms of Use

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 Provider;

(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;

(d) access and use the Services solely in accordance with these terms and conditions and any reasonable instructions provided by the Provider;

(e) employ back-up power and surge protectors at the Client’s premises;

(f) respond promptly to the Provider’s communications in relation to the Services;

(g) provide accurate and prompt responses to the Provider’s requests for any information or documentation reasonably required by the Provider 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 Provider be inadequate etc.);

(i) ensure that the Provider at all times is granted all necessary licences, permissions and access reasonably required by the Provider 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 Provider, 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 Provider’s express written consent;

(iv) to breach any of the Intellectual Property rights held by the Provider or any third party;

(v) to transmit, publish or communicate materials which is defamatory, offensive, abusive, indecent, menacing or unwanted;

(vi) to expose the Provider 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 Provider 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

(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 Provider’s suppliers or the wholesale / carrier or third party provider of a service in relation to the Services or service faults. The Provider 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 Provider will need 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 Provider 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 Provider 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 Provider shall be entitled without liability to take such actions as it deems appropriate in the circumstances.

10.3 If, in the Provider’s opinion, the Services are being used by anyone in breach of these terms and conditions (including clause 10) or internet etiquette, the Provider may:

(a) refuse to post such infringing information to public areas;

(b) remove, review or edit such infringing information from any computer on the Provider’s network, with the exception of private electronic messages;

(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 Provider to delete without notice or liability any information or materials found on the Products (or equipment controlled by the Provider) 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 Provider 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 Provider has recommended the Client to take reasonable steps to back-up the Client Data separately from the Services; and

(c) the Provider will put in place and manage back-up procedures described in the Provider’s quotation or proposal and/or other written communication from the Provider to the Client.

11. Provision of the Services

11.1 The Provider 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 Provider 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 Provider. In no event though, shall the Provider 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 Provider to provide Services under this Contract, or any loss of data, if such delays or failures are due to circumstances beyond the Provider’s control. Such a failure or delay shall not constitute a default under this Contract; and

(b) any time specified by the Provider for provision of the Services is an estimate only and the Provider 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 Provider is unable to provide the Services as agreed solely due to any action or inaction of the Client, then the Provider 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 Provider may, at their sole discretion, limit or deny access to the Services if, in the judgement of the Provider, 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 Provider 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. Delivery of Products

12.1 Delivery (“Delivery”) of the Products is taken to occur at the time that the Provider (or the Provider’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 Provider to the Client, or as otherwise notified to the Client prior to the placement of an order for Products.

12.3 The Provider 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 Provider is entitled to receive all insurance proceeds payable for the Products. The production of these terms and conditions by the Provider is sufficient evidence of the Provider’s rights to receive the insurance proceeds without the need for any person dealing with the Provider to make further enquiries.

12.7 If the Client requests the Provider to leave Products outside the Provider’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. Access

13.1 The Provider may need to access the property in order to provide the Services. The Client agrees to provide the Provider 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 Provider 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 Provider to access the property and install any Products.

13.3 The Client owes the Provider the value of the Products as a debt due if the Provider cannot access the property to recover it, or in the event the Products are lost or damaged.

14. Compliance with Laws

14.1 The Client and the Provider 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. Title

15.1 The Provider and the Client agree that the Client’s obligations to the Provider for the provision of Services shall not cease (and ownership of any Products shall not pass) until:

(a) the Client has paid the Provider all amounts owing to the Provider; and

(b) the Client has met all of its other obligations to the Provider.

15.2 Receipt by the Provider 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 Provider on request;

(b) the Client holds the benefit of the Client’s insurance of the Products on trust for the Provider and must pay to the Provider 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 Provider and must pay or deliver the proceeds to the Provider 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 Provider and must sell, dispose of or return the resulting product to the Provider as it so directs;

(e) the Client irrevocably authorises the Provider to enter any premises where the Provider believes the Products are kept and recover possession of the Products;

(f) the Provider 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 Provider;

(h) the Provider may commence proceedings to recover the Price of the Products sold notwithstanding that ownership of the Products has not passed to the Client.

16. Personal Property Securities Act 2009 (“PPSA”)

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 Provider 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 Provider 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 Provider 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 Provider;

(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 Provider;

(e) immediately advise the Provider 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 Provider 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 Provider, 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 Provider 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. Security and Charge

17.1 In consideration of the Provider agreeing to supply the Products and/or provide its Services, the Client grants the Provider a security interest by way of a floating charge (registerable by the Provider 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 Provider to appoint a receiver to the Client in accordance with the Corporations Act 2001 (Cth).

17.2 The Client indemnifies the Provider from and against all the Provider’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising the Provider’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 Provider to secure the repayment of monies owed by the Client to the Provider, the Client hereby grants the Provider 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. Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA)

18.1 The Client must inspect/review the Services on provision (and/or the Products on Delivery) and must within seven (7) days of Delivery notify the Provider 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 or Services as soon as reasonably possible after any such defect becomes evident. Upon such notification the Client must allow the Provider to inspect the Services and/or 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 Provider 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 Provider makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Products. The Provider’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 Provider’s liability is limited to the extent permitted by section 64A of Schedule 2.

18.6 If the Provider is required to replace the Products under this clause or the CCA, but is unable to do so, the Provider 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 Provider’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 Provider at the Provider’s sole discretion;

(b) limited to any warranty to which the Provider is entitled, if the Provider did not manufacture the Products;

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 Provider has agreed that the Products are defective; 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 Provider 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 Provider;

(e) fair wear and tear, any accident, or act of God.

18.10 Notwithstanding anything contained in this clause if the Provider is required by a law to accept a return, then the Provider will only accept a return on the conditions imposed by that law.

19. Intellectual Property

19.1 If during the course of providing the Services, the Provider 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 Provider and the Client shall not use or supply the same in any way whatsoever without first obtaining the written consent of the Provider.

19.2 The Client warrants that all designs, specifications, information, and instructions to the Provider will not cause the Provider 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 Provider harmless from all loss incurred or suffered by the Provider 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 Provider. Copying or disseminating the code for any purpose whatsoever is strictly forbidden and will be a breach of copyright.

19.4 Where the Provider has developed Software (and associated documentation) databases, training materials, electronic tools and/or for any of the Provider’s source code (“Tools”), then a copyright in those Tools shall remain vested in the Provider and the Provider 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 Provider, and identified as such, strictly in terms of the licence (or any other conditions imposed by the Provider) under which it is supplied. The Client further agrees that they shall not without the Provider’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 Provider against any action taken by a third party against the Provider in respect of any such infringement.

19.5 Notwithstanding anything herein, upon termination of the Contract (in accordance with clause 24) the Provider shall revoke the licence to use and remove any Tools. Once removed, the Provider shall accept no liability and the Client indemnifies the Provider for any losses and/or damages (including, but not limited to, any subsequent security breach or virus infection, etc.) that may occur once the Provider 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 Provider) without the Provider’s prior consent in writing.

19.7 The Client hereby authorises the Provider to utilise images of the Services created by the Provider in advertising, marketing, or competition material by the Provider.

20. Client Data

20.1 The Client warrants that:

(a) they have the legal right to supply the Client Data to the Provider in connection with the managed services level 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 Provider 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

20.3 From time to time, the Provider will be directed in writing to move data on one piece of hardware (“Copied Data”) to another, the Provider 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 Provider 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 Provider 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 Provider’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 Provider’s Intellectual Property and the Services;

(b) where the Client elects for the destruction of the Client Data, the Provider 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 Provider 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 Provider 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 Provider 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 Provider may destroy or otherwise dispose of any of the Client Data in the Provider’s possession and the Client shall not have any claim whatsoever after this time.

21. Limitation of Liability

21.1 The Client acknowledges and agrees that the Provider 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 Provider. The Provider 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 Provider providing the Services. The Client accepts full responsibility for the Client’s software and data and the Provider 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 Provider 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 Provider, 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 Provider of these terms and conditions.

21.4 The maximum liability of the Provider 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 Provider’s proposal.

21.5 The Client agrees to indemnify the Provider, (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 Provider. 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 Provider 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 Provider, 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 Provider 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 Provider;

(b) errors occurring in plans or specifications not created or prepared by the Provider;

(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 Provider’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 Provider, its personnel or any related body corporate under or in relation to the Contract;

(r) any delay in the provision of the Services.

22. Default and Consequences of Default

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 Provider’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 Provider any money, the Client shall indemnify the Provider from and against all costs and disbursements:

(a) incurred; and/or

(b) which would be incurred and/or

in regard to legal costs on a solicitor and own client basis incurred in exercising the Provider’s rights under these terms and conditions, internal administration fees, the Provider’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 Provider may have under this Contract, if a Client has made payment to the Provider, 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 Provider 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 Provider’s other remedies at law the Provider shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to the Provider shall, whether or not due for payment, become immediately payable if:

(a) any money payable to the Provider becomes overdue, or in the Provider’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 Provider;

(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. Confidentiality

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;

(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;

24. Suspension and Termination

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 Provider, due to reasons beyond the Provider’s reasonable control, is unable to deliver any Products and/or Services to the Client, the Provider 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 Provider shall repay to the Client any money paid by the Client for the Products and/or Services. The Provider 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 Provider, 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 In the event the time period has passed in accordance with clause 24.3, 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 Provider with thirty (30) days’ notice.

24.5 Subject to clauses 8 and 24.1, if the Client wishes to terminate the Services during the term stipulated, the Provider 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 Provider (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 Provider 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 Provider accepts no liability for any loss or damage incurred by the Client as a result of the deletion of such data.

24.9 In the event the Services are terminated as per clauses 24.1 or 24.4, the Services can be re-instated under a new agreement at the prevailing rates; however no credits or discounts will be granted and reinstatement costs shall apply.

25. Dispute Resolution

25.1 The Provider 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. Privacy Policy

26.1 All emails, documents, images, or other recorded information held or used by the Provider is Personal Information, as defined and referred to in clause 26.4, and therefore considered Confidential Information. The Provider 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 Provider acknowledges that in the event it becomes aware of any data breaches and/or disclosure of the Client’s Personal Information, held by the Provider that may result in serious harm to the Client, the Provider 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 Provider in respect of Cookies where the Client utilises the Provider’s website to make enquiries. The Provider 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 Provider when the Provider sends an email to the Client, so the Provider may collect and review that information (“collectively Personal Information”)

If the Client consents to the Provider’s use of Cookies on the Provider’s website and later wishes to withdraw that consent, the Client may manage and control the Provider’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 for the Provider to obtain from a credit reporting body (CRB) a credit report containing personal credit information (e.g. 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) about the Client in relation to credit provided by the Provider.

26.4 The Client agrees that the Provider 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.

26.5 The Client consents to the Provider being given a consumer credit report to collect personal credit information relating to any overdue payment on commercial credit.

26.6 The Client agrees that personal credit information provided may be used and retained by the Provider 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.

26.7 The Provider 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.

26.8 The information given to the CRB may include:

(a) Personal Information as outlined in 26.4 above;

(b) name of the credit provider and that the Provider is a current credit provider to the Client;

(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 Provider 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 Provider 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 Provider, 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).

26.9 The Client shall have the right to request (by e-mail) from the Provider:

(a) a copy of the Personal Information about the Client retained by the Provider and the right to request that the Provider correct any incorrect Personal Information; and

(b) that the Provider does not disclose any Personal Information about the Client for the purpose of direct marketing.

26.10 The Provider 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.

26.11 The Client can make a privacy complaint by contacting the Provider via e-mail. The Provider 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. Service of Notices

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;

(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. Trusts

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 Provider may have notice of the Trust, the Client covenants with the Provider 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 Provider (the Provider 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. General

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 Sydney, New South Wales. 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 Provider 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 Provider.

29.5 The Provider 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 Provider’s sub-contractors without the authority of the Provider.

29.6 The Client agrees that the Provider 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 Provider to provide Services 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 Provider, 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 The parties agree that the following listed clauses of these terms and conditions will continue in full force and effect in the event that these terms and conditions are terminated or expire for whatever reason, clause 9 (Price and Payment), clause 21 (Limitation of Liability), clause 19 (Intellectual Property), clause 23 (Confidentiality), clause 25 (Dispute Resolution) clause 27 (Services of Notices), and clause 29 (General Provisions).

29.11 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.