These Terms of Service are between you (“Client”) and Ignite Online Pty Ltd ACN 608 432 346 (“Ignite Online”), and set out the terms on which the Services (as defined below) will be provided by Ignite Online to you. By using or accessing our Services, you agree to be bound by these Terms of Service.
The parties agree:
- Definitions & Interpretation
In these Terms of Service unless inconsistent with the context or subject matter:
- “Address for Service” means, in relation to each party:
Service Provider – firstname.lastname@example.org
Client – the email address set out in the Proposal;
- “Client” means a person who engages us to provide Services, being the person/entity set out in the Proposal;
- “Client Account” means any account in your name or created by us on your behalf, such as a WordPress account, Google Adwords account, and social media account;
- “Client Data” means all data, works, information and materials supplied by you to us, including without limitation any images or text that you request we incorporate into the Development Services or Marketing Services;
- “Commencement Date” means the commencement date set out in Proposal;
- “Confidential Information” of a party means all information (in any form):
- that is explicitly marked by the party providing it as being “confidential”; and
- includes these Terms of Service;
but does not include information that:
- is or becomes independently developed or known by the other party through no breach of these Terms of Service by that party;
- or becomes publicly available without breach of these Terms of Service;
- “Development Services” means any website development services set out in the Proposal;
- “Extra Services” means any services that are not specifically set out in a Proposal.
Extra Services includes without limitation:
- any marketing on any additional platforms other than those set out in the Proposal;
- in relation to Development Services, any:
- additional pages and features;
- changes to functionality;
- uploading of additional products, images and content;
- arranging or creating any photography or video content.
- generation and editing of content;
- SEO migration;
- plugin updates, site core updates and security updates;
- subsequent changes to appearance and layout after it has been finalised and approved by you;
- any delays by you in providing us with any information and content, and any follow ups that we are required to do to obtain such information and content;
- any further work carried out by us at your request after ownership of Intellectual Property passes to you under these Terms of Service;
- “Fee” means the fee/s payable for the Services as specified in the Proposal, and any other fees and charges payable by you to us under these Terms of Service;
- “Force Majeure” means delay or inability to perform or breach of these Terms of Service or Loss suffered by you which is directly or indirectly caused by circumstances outside of our reasonable control, including but not limited to the following: war, whether declared or not, insurrections, strikes, lockouts or other industrial disturbance, inability to obtain materials, unavailability of equipment, fire, storm or other severe action of the elements, accidents, government or statutory restrictions, inability to access the internet, electricity outage, or your online accounts which we use to provide the Services (such as a Google Adwords account, or a social media account) is banned, hacked/stolen, blocked or barred from trading or otherwise becomes inaccessible or unusable for any reason;
- “Hosting Services” means any hosting services set out in a Proposal, which may include both hosting and other administrative services, such as domain registration, Google apps set up and email set-up;
- “Insolvency Event” means:
- a person is or states that the person is unable to pay from the person’s own money all the person’s debts as and when they fall due, or a person is taken or must be presumed to be insolvent or unable to pay the person’s debts under any applicable legislation;
- an application or order is made for the winding up or dissolution or a resolution is passed or any steps are taken to pass a resolution for the winding up or dissolution of a corporation;
- an administrator, provisional liquidator, liquidator or person having a similar or analogous function under the laws of any relevant jurisdiction is appointed in respect of a corporation or any action is taken to appoint any such person and the action is not stayed, withdrawn or dismissed within seven days;
- a corporation is deregistered under the Corporations Act 2001 (Cth) or notice of its proposed deregistration is given to the corporation;
- a person enters into or takes any action to enter into an arrangement (including a scheme of arrangement or deed of company arrangement), composition or compromise with, or assignment for the benefit of, all or any class of the person’s creditors or members or a moratorium involving any of them; or
- a petition for the making of a sequestration order against the estate of a person is presented and the petition is not stayed, withdrawn or dismissed within seven days or a person presents a petition against himself or herself;
- “Intellectual Property” means all intellectual property rights in anything that we develop for you as a part of the Services such as:
- content created by us in connection with the Services, including ad copies, landing pages and websites, and the production “public” code contained therein (as determined by us, which for the avoidance of doubt excludes any source code);
- presentations, information or data and other information technology relating to or connected with the Services;
- accounts we create for you, such as a Google Adwords account,
- any intellectual property that we owned prior to the Commencement Date or which was created independently of the provision of the Services;
- any documentation, strategy, systems, design, materials, methodologies, processes or ideas created by us (including in connection with the Services);
- scripts, CGI applications, software, source/object code, algorithms and layout of any websites we develop (including in connection with the Services);
- “Interest Rate” means the rate of 12% per annum;
- “Loss” means any loss, liability, cost, charge, expense, tax or damage of any nature whatsoever, including lost profits, loss of goodwill, loss of business, loss of production and any other special, incidental, exemplary, compensatory or consequential damages, losses or expenses (howsoever arising or caused, including, without limitation, negligence);
- “Marketing Services” means any digital marketing services set out in a Proposal;
- “Minimum Term” means any minimum term set out in the Proposal, which shall commence on the Commencement Date, or if no minimum term is specified, then three months commencing on the Commencement Date;
- “our”, “us” and “we” means Ignite Online;
- “Proposal” means a written proposal provided by us to you setting out the:
- Services we agree to provide you;
- Payment terms in respect of the Fee;
- Commencement Date;
- Minimum Term (if any);
- other information that we consider relevant;
- “Related Entity” has the meaning given to it in section 9 of the Corporations Act 2001 (Cth);
- “Services” means the services set out in the Proposal, being Development Services, Marketing Services and/or Hosting Services, and any other services that we provide to you;
- “Term” means the term of these Terms of Service, commencing on the Commencement Date and ending on the date that they are terminated in accordance with their terms;
- “Third Party Fees” means any fees payable to a third party in respect of the Services, including without limitation in relation to marketing, domain registration, hosting, website templates and stock images;
- “you” and “your” means the Client.
In these Terms of Service, unless inconsistent with the context or subject matter:
- a reference to a “website” includes an application where applicable;
- a reference to a person includes any other legal entity and vice versa;
- words importing the singular number include the plural number and vice versa;
- a reference to a party includes the party’s heirs, executors, successors and permitted assigns;
- where any word or phrase is given a defined meaning any other part of speech or other grammatical form concerning the word or phrase has a corresponding meaning;
- references to writing include any mode of representing or reproducing words in tangible and permanently visible form, and includes e-mail and fax;
- a reference to a monetary amount is a reference to an Australian currency amount;
- references to time are to local time in Melbourne; and
- where time is to be reckoned from a day or event, the day or the day of the event must be excluded.
2.1 We agree to provide you with the Services as set out in any Proposal during the Term on the terms set out herein.
2.2 In the event of any inconsistency between any term of these Terms of Service and any Proposal, the terms contained in the Proposal will prevail to the extent of the inconsistency.
2.3 The scope of the Services being provided is set out in the Proposal. You may request us to provide you with Extra Services, and we may accept or reject that request in our sole discretion. We will advise you of any additional Fees payable in respect of any Extra Services, and the time for payment. If no time is stated, they must be paid within the timeframe set out on any invoice that we provide to you in respect of the Extra Services.
2.4 Unless otherwise stated in a Proposal or otherwise agreed by us, a quote in a Proposal is only valid for 14 days from the date of the Proposal. We reserve the right to withdraw any Proposal at any time in our discretion prior to the commencement of the Services by us (including after you have accepted the Proposal and these Terms of Service).
3.1 In consideration of us providing you with the Services, you agree to pay us the Fees at the time/s specified in the Proposal, or if no payment date is specified, at the time set out in any tax invoice that we issue you in respect of the Fees.
3.2 In the event the Proposal requires you to pay an upfront Fee/deposit, you must pay this on or before the Commencement Date. You acknowledge that we may not commence the provision of the Services until this Fee is paid.
3.3 You are responsible for payment of all Third Party Fees upfront, unless we agree to pay these on your behalf (in which case you must reimburse us within 14 days of us issuing you an invoice in respect of the same). You must provide us with your valid credit card details that we can provide to third parties in respect of payment of Third Party Fees.
3.4 All Fees must be paid into the bank account nominated by us or by any other means specified by us. If you make payment by credit card, we reserve the right to charge you a small processing fee which we will advise you at the time of payment.
3.5 If you have agreed to a direct debit arrangement, then you irrevocably authorise us to debit the Fees during the Term from your nominated bank account/credit card/debit card (“Account”), on or around the date that we generate an invoice in respect of the Fees without notice to you. You must ensure that your Account details are up to date at all times and you must notify us in the event that the details are no longer current, and provide replacement details. You also irrevocably authorise us to deduct all other fees and charges payable by you to us under these Terms of Service from your nominated Account. You warrant that any Account details you provide to us are your own.
3.6 Unless otherwise stated, all of our Fees and any other amounts payable by you are to be increased by any goods and services tax payable on the supply of the Services.
3.7 You must pay us all Fees and other amounts without set-off or claim under any circumstances, including if a dispute exists in relation to the Services provided.
3.8 If you fail to pay any amount when due under these Terms of Service, you acknowledge that we may in our discretion:
- suspend the provision of the Services to you, and we will not be responsible for any Loss you suffer because of this;
- change your username, password or login details to any Client Account or other account connected with the Services and withhold those details until you have paid all amounts owing; and/or
- charge you interest calculated at the Interest Rate which shall accrue daily and compound monthly in respect of the overdue amount from the due date for payment up to the date of actual payment of all amounts owed.
3.9 Upon acceptance of a Proposal, we allocate resources to your project and commit a significant amount of time to the provision of the Services, which may result in us rejecting other work. As such, unfortunately to the extent permitted by law all Fees and other amounts paid by you to us are non-refundable, including without limitation any upfront deposit.
4. Your Obligations
4.1 You acknowledge and agree that you will promptly provide all information (including account passwords), documentation and assistance reasonably required by us in order to provide you with the Services as soon as possible on being requested to do so. Any delays may delay the project and may incur additional charges. Where you fail to supply this information to us, and that prevents the progress of the Services, we have the right to invoice you for any part or parts of the Services already completed as well as any additional fees we consider appropriate in respect of the delay.
4.2 Your use of our Services, and the information you provide to us, must not:
- be false, inaccurate or misleading;
- be fraudulent or deceptive;
- infringe any third party’s copyright, patent, trademark, trade secret, intellectual property or other proprietary rights or rights of publicity or privacy; or
- violate any applicable law.
4.3 We reserve the right to refuse to handle or incorporate in the Services any material which we consider may be deemed offensive, illegal or in any way controversial, or that may infringe any third party rights.
4.4 You warrant that you are the owner of all information and content that you provide to us, or that you have the right to provide such information to us, including without limitation in respect of any domain names.
5. Development Services
5.1 The following terms set out under this clause 5 apply to any Development Services that we provide to you.
5.2 By using current versions of well supported content management systems such as ‘Wordpress’, we endeavour to ensure that any website created by us is compatible with all current modern web browsers such as the most recent versions of Internet Explorer, Firefox, Google Chrome and Safari. Where used, third party extensions may not have the same level of support for all browsers. Where appropriate, we will substitute alternative extensions or implement other solutions on a best effort basis, where any incompatibilities are found, however we make no warranties that all third party extensions will ultimately be compatible with all browsers and that full functionality will be gained across all browsers.
5.3 We use our best endeavours to supply Development Services in accordance with current best practice, however are unable to guarantee any specific position in search engine results.
Reviews & Modifications
5.4 On completion of any Development Services (or parts thereof) noted under the Proposal, you will be notified and have the opportunity to review them.
5.5 You must notify us in writing within 7 days as to whether you are satisfied with the Development Services provided, or whether you require any modifications. One round of modifications is included in the Fee for the Development Services, provided that the modifications are in respect of matters specifically contemplated in the Proposal, and do not constitute Extra Services (as determined by us in our discretion).
5.6 In the event that you fail to provide such notification, you will be deemed to have accepted the Development Services.
5.7 In the event that you notify us that you require modifications, and such modifications do not constitute Extra Services, then we will make one round of modifications to the Development Services at no additional charge to you.
5.8 In the event that you notify us that you require more than one round of modifications, or any modifications constitute Extra Services, or you request modifications after you have accepted the Development Services (whether the acceptance actual or deemed), you must pay any fees notified by us to you for such services, which shall be calculated in accordance with our then current hourly rates.
5.9 For the avoidance of doubt, you must not withhold any payments to us on the basis that we have not completed any modifications.
5.10 You may terminate the Development Services at any time upon giving us 7 days’ written notice. In the event that you terminate the Development Services prior to completion of the Development Services and payment of all Fees, you must pay to us on or before the date that the termination becomes effective:
- all outstanding Fees;
- our Fees in respect of the Development Services provided by us up until the date of termination, which may not have been invoiced or fallen due as at the date you provide the notice of termination. We will provide you with an invoice in respect of this amount and such invoice is deemed to be conclusive evidence of the amount payable in this regard; and
- 30% of the total Fees that would have otherwise been payable by you in respect of the Development Services had the Development Services not been terminated early. We will provide you with an invoice in respect of this amount and such invoice is deemed to be conclusive evidence of the amount payable in this regard.
5.11 Termination of the Development Services under this clause 5 does not terminate any other Services that we have agreed to provide to you, however if we are not providing you with any other Services at the time the termination takes effect then these Terms of Service are deemed terminated on the termination of the Development Services.
6. Marketing Services
6.1 The following terms set out under this clause 6 apply to any Marketing Services that we provide to you.
6.2 We use our best endeavours to supply our Marketing Services in accordance with current best practice, however are unable to guarantee any specific ranking, position in search engine results, or any other results.
6.3 In order to provide the Marketing Services to you we may require access to the Client Accounts or your website and the ability to make changes to your website. You authorise us to access and make modifications in your Client Accounts and website for the purposes of supplying you the Marketing Services.
6.4 If you make changes to your website which is the subject of our Marketing Services which adversely affects the ranking of the website or the ability for us to provide the Marketing Services, you agree that if we need to re-optimise the website or provide any additional services that would have not otherwise been required then this will constitute Extra Services.
6.5 You acknowledge that we have no control over the change to search engine (for example Google) policies or algorithm changes. At any time, your website may lose rankings or be excluded from any search engine at the sole of discretion of the search engine (for example Google).
6.6 You acknowledge and agree that although you may specify a marketing budget, we are not liable for any under spend or overspend of that budget that ultimately occurs and you remain solely liable for payment of all Third Party Fees in this regard (even if they are more than what you budgeted/notified to us). This is because third party marketing platforms often only permit an estimated budget to be inputted, and the fees ultimately charged may be more than the budget specified.
6.7 For the avoidance of doubt, we are not liable for any Loss that you suffer in the event that the Marketing Services are not well received (for example, if an ad is viewed negatively).
Reviews & Modifications
6.8 Throughout the period of providing you the Marketing Services, we may provide you with an opportunity to review the strategy that we have developed in respect of the Marketing Services, any ads that we have prepared or any other component of the Marketing Services (“Material”).
6.9 In the event we provide you with Material to review, you must notify us in writing within 7 days as to whether you are satisfied with the Material, or whether you require any modifications. One round of modifications is included in the Fee for the Marketing Services, provided that the modifications are in respect of matters specifically contemplated in the Proposal, and do not constitute Extra Services (as determined by us in our discretion).
6.10 In the event that you fail to provide such notification, you will be deemed to have accepted the Material.
6.11 In the event that you notify us that you require modifications, and such modifications do not constitute Extra Services, then we will make one round of modifications to the Material at no additional charge to you.
6.12 In the event that you notify us that you require more than one round of modifications, or any modifications constitute Extra Services, or you request modifications after you have accepted the Material (whether the acceptance actual or deemed), you must pay any fees notified by us to you for such services, which shall be calculated in accordance with our then current hourly rates.
6.13 For the avoidance of doubt, you must not withhold any payments to us on the basis that we have not completed any modifications.
6.14 Subject to the following clause, you may terminate the Marketing Services at any time upon giving us 30 days’ written notice, or payment of all Fees which would have otherwise been paid to us during the notice period in respect of the Marketing Services.
6.15 Unless explicitly agreed otherwise in a Proposal, all Marketing Services are subject to the Minimum Term. In the event that you terminate the Marketing Services more than 30 days prior to the expiry of the Minimum Term, you must pay to us all Fees that would have otherwise been paid to us had you not terminated the Marketing Services until the expiry of the Minimum Term.
6.16 Termination of the Marketing Services under this clause 6 does not terminate any other Services that we have agreed to provide to you, however if we are not providing you with any other Services at the time the termination takes effect then these Terms of Service are deemed terminated on the termination of the Marketing Services.
7. Hosting Services
7.1 The following terms set out under this clause 7 apply to any Hosting Services that we provide to you.
7.2 In the event that we arrange the hosting of your website, this may be provided on shared and non-shared servers hosted by third party providers. You acknowledge and agree that in addition to these Terms of Service, you will be bound by any applicable third-party provider’s terms in respect of the hosting.
7.3 Failure by you to pay any domain renewal fees will result in the cancellation of the relevant domain name and we are not liable for any Loss you suffer in that regard.
7.4 Although we maintain appropriate technical and organisational measures to protect the security of our servers, we unable to guarantee that there will not be any disruption of services. You acknowledge and agree that the use of the Hosting Services by you is at your sole risk. We are not responsible for any Loss suffered by you as a result of any downtime or termination of the Hosting Services.
7.5 Subject to the following clause, you may terminate the Hosting Services at any time upon giving us 30 days’ written notice, or payment of all Fees which would have otherwise been paid to us during the notice period in respect of the Hosting Services.
7.6 Unless explicitly agreed otherwise in a Proposal, all Hosting Services are subject to the Minimum Term. In the event that you terminate the Hosting Services more than 30 days prior to the expiry of the Minimum Term, you must pay to us all Fees that would have otherwise been paid to us had you not terminated the Hosting Services until the expiry of the Minimum Term.
7.7 Termination of the Hosting Services under this clause 7 does not terminate any other Services that we have agreed to provide to you, however if we are not providing you with any other Services at the time the termination takes effect then these Terms of Service are deemed terminated on the termination of the Hosting Services.
8. Client Data & Client Account
8.1 You hereby grant us a non-exclusive and irrevocable licence to copy, reproduce, store, distribute, publish, export, adapt, edit and translate the Client Data to the extent reasonably required for the performance of our obligations and exercise of our rights under these Terms of Service, together with the right to sub-licence those rights to our hosting, connectivity and telecommunications service providers to the extent reasonably necessary.
8.2 We will provide you with your Client Account login details on completion/termination of the Services, subject to payment of all Fees and other amounts payable by you under these Terms of Service and compliance by you with all other terms of these Terms of Service.
8.3 We are not responsible for providing any data backup services and we make no guarantees that there will be no loss or corruption of Client Data at any time. Unfortunately, data loss happens and we are not liable for any Loss you suffer in the event that your data is lost, for example if your website is hacked and is deleted. In the event your data is lost, we may be able to provide recovery services, which are deemed to be an Extra Service.
8.4 We will maintain appropriate technical and organisational measures to protect the security of the Client Data. We do not guarantee that unauthorised third parties will never be able to defeat those measures to access the Client Data for improper purposes. You acknowledge that there are risks inherent in internet connectivity that could result in the loss of privacy, confidential information and Client Data. Accordingly, any Client Data that is transmitted by you is transmitted solely at your risk.
9. Intellectual Property
9.1 All intellectual property owned by either party prior to the Commencement Date shall remain the property of that party.
9.2 You acknowledge and agree that you must not breach any of our intellectual property rights, such as by:
- breaching the copyright in any of our materials;
- altering, reverse engineering, selling or otherwise dealing with our materials in any way that is inconsistent with our ownership of such materials;
- using our materials for any purpose other than which they were provided to you.
9.3 To the extent that we are able to, we agree that any Intellectual Property that we create specifically for you as a part of the Services is your property, on and from the date that all Fees specified under the Proposal or that are otherwise payable under these Terms of Service are paid, and the Services are completed. We will provide you with the Intellectual Property only once it becomes your property in accordance with this clause, subject to any other rights that we may have in these Terms of Service. For the avoidance of doubt, upon the Intellectual Property becoming your property you may move any website we have developed for you to any server you choose, and have any developer you choose work on it.
10. In the event that these Terms of Service are terminated prior to the completion of the relevant Services, we will retain ownership of all Intellectual Property and are not obliged to provide it to you, even if you have paid part of our Fees.
10.1 You acknowledge that we may use pre-existing designs, scripts and other third party intellectual property and open source code in providing you with the Services, and the owner of such other property (which may be us or a third party) retains all copyright and ownership in that property. In that case, we grant you a non-exclusive licence to use the other property to obtain the full benefit of the Services.
10.2 You acknowledge and agree that:
- we may develop other websites that have a similar look and feel to any website we develop for you, and provide others with services that are similar to the Services that we provide to you, and you must not object to this;
- We may incorporate images into the Services which are the property of third parties and which are subject to licence terms, which may include the payment on ongoing licence fees. You agree to be bound by and comply with all such licence terms and you are solely liable for all obligations thereunder;
- We may incorporate images and other representations of the Services that we have provided to you in our advertising, marketing, or competition materials at any time, including following completion of the Services.
11. Events Outside of Our Control
11.1 We always use our best endeavours to meet deadlines, however sometimes it is not possible for us to meet a deadline and you agree that any deadlines we agree to are non-binding on us.
11.2 If we are rendered unable, wholly or in part, by Force Majeure to carry out or observe any of our obligations under these Terms of Service, we shall give you prompt written notice providing full details of the Force Majeure.
11.3 Our obligations under these Terms of Service, to the extent affected by Force Majeure, will be suspended and no claim by you will avail by reason of such Force Majeure provided that we, to the extent practicable, take all reasonable steps to remove the Force Majeure as soon as possible. We may require your assistance to overcome the Force Majeure and you must provide all reasonable assistance promptly.
11.4 For the avoidance of doubt, we shall not be liable for any Loss suffered by you as a result of Force Majeure.
12. Breach and Termination
12.1 Without limiting other remedies available to us at law, in equity or under these Terms of Service, we may, in our sole discretion terminate these Terms of Service immediately on giving you written notice if:
- you fail to pay any of our Fees on time;
- you breach these Terms of Service and fail to rectify the breach upon being given 7 days written notice to do so;
- you suffer an Insolvency Event;
- we believe that your actions may cause legal liability for us or other clients of our business; or
- in our sole opinion, your conduct, acts or omissions threaten, interfere or impact upon the integrity or credibility of our Services or us.
12.2 We may otherwise terminate these Terms of Service at any time upon giving you 30 days written notice.
12.3 Unless otherwise agreed in writing, you may terminate these Terms of Service immediately on giving us written notice if:
- we breach these Terms of Service and fail to rectify the breach upon being given 7 days written notice to do so; or
- we suffer an Insolvency Event.
12.4 Immediately on termination of these Terms of Service, all Fees payable by you shall become immediately due and owing. In the event that we terminate these Terms of Service under clause 11.1, you must pay to us all Fees that would have otherwise been payable to us had these Terms of Service not been terminated early. We will calculate this amount with regard to the termination clauses in clauses 5, 6, and 7 (as relevant), and for the purposes of this calculation you will be deemed to have terminated the relevant Services under those respective clauses. Such amounts are a debt immediately due and owing by you to us.
12.5 Termination of these Terms of Service shall be without prejudice to the rights and liabilities of the parties which arose prior to the termination.
13. No Warranty and Disclaimers
13.1 We provide our Services on an “as is” basis and without any warranties, representations, or conditions of any kind, whether express, implied or statutory, to the extent permitted by law. We do not warrant or represent that our Services will result in increased sales, revenues, profits, customers, page views, or any other outcomes. To the extent permitted by law, we specifically disclaim any implied warranties including in relation to title, merchantability, fitness for a particular purpose and non-infringement. Furthermore, we do not guarantee continuous, uninterrupted or secure access to its Services, or that any information provided by us is up to date and accurate, or that the Services will operate in combination with any other hardware, software system or data, or that the Client Data will be accurate or reliable or not be lost or corrupted or that errors will be corrected or that the Services are free of viruses or other harmful components.
13.2 You warrant that you have not relied upon any representations, warranties or conditions offered or made by or on behalf of us except to the extent expressly set out in these Terms of Service.
13.3 To the extent permitted by law, we expressly limit our and our employees, directors and contractors/consultants and Related Entities liability for breach of a non-excludable condition or warranty implied by virtue of any legislation or law to the amount paid by you to us in the month immediately preceding the breach.
14. Liability and Indemnity
14.1 You hereby release us and our Related Entities from all Losses, damages, costs or expenses, including legal costs, in respect of all claims, demands, actions, proceedings or prosecutions which may be bought, commenced or prosecuted against us in consequence or relating to or arising out of the provision of the Services. We shall not be liable to you in respect of any Losses arising in any way in connection with these Terms of Service, including loss of profits or anticipated savings or revenue or income, use or production, business, opportunities or contracts, corruption of any data, database or software, special indirect or consequential loss or damage whether such losses are suffered by you or a third party and you hereby indemnify us in respect of same.
14.2 You must indemnify and keep us and our Related Entities indemnified against all Loss, damages, costs or expenses, including legal costs (on a solicitor own client basis), in respect of all claims, demands, actions, proceedings or prosecutions which may be bought, commenced or prosecuted against us in consequence or relating to a breach of these Terms of Service by you.
14.3 For the avoidance of doubt, you must pay to us immediately on demand as a debt due and owing all costs incurred by us (including legal costs on a solicitor own client basis) in recovering any amount owed by you to us.
15. Confidential Information
15.1 Other than where:
- disclosure is required to provide the Services;
- the Confidential Information is in the public domain, except as a consequence of a breach of this clause;
- expressly agreed by all parties in writing; or
- required by law;
the parties must at all times treat and keep the other party’s Confidential Information confidential.
16.1 All notices authorised or required under these Terms of Service to be given by a party to another shall be in writing sent by email addressed to the other party at that party’s Address for Service or at such other address as a party may from time to time notify to the other party.
16.2 Receipt of a notice given under these Terms of Service will be deemed to occur one business day after the email is sent (provided no message send failure message is received within 24 hours of the email being sent).
17.1 These Terms of Service are governed by the laws of Victoria and the Commonwealth of Australia which are in force in Victoria and the parties submit to the jurisdiction of the Courts of Victoria, relevant Federal Courts and Courts competent to hear appeals from them.
17.2 These Terms of Service shall be for the benefit of and binding upon the parties and their heirs, executors, successors and permitted assigns.
17.3 If a clause of these Terms of Service is void or unenforceable it must be severed from these Terms of Service and the clauses that are not void or unenforceable are unaffected by the severance.
17.4 You agree that we may engage contractors to assist us in providing the Services, and we will be required to provide our staff and contractors with your Confidential Information in order to provide you with the Services.
17.5 We are entitled to rely on the information and approvals provided to us by any representative of your organisation, regardless of whether or not the representative has the authority to provide such information or approvals.
17.6 You agree that these Terms of Service may be assigned by us, in our sole discretion, to third parties. You may not assign these Terms of Service without our prior written consent.
17.7 Our failure to act with respect to a breach by you or others does not constitute a waiver of that breach or waive our right to act with respect to that breach or subsequent or similar breaches.
17.8 These Terms of Service comprise the entire understanding and agreement between you and us with respect to the subject matter hereof and any oral or other written agreements between the parties that are inconsistent with these Terms of Service shall be negated.
17.9 Nothing in these Terms of Service establishes or creates a joint venture, partnership, consortium, franchise, employment or agency relationship between the parties.
17.10 The Intellectual Property and Confidential Information clauses under these Terms of Service survive any termination or expiration of these Terms of Service.
17.11 Any legal rules of construction will not apply to disadvantage a party whether that party put the clause forward, was responsible for drafting all or part of it or would otherwise benefit from it.
17.12 Feedback & Dispute Resolution
- Your feedback is important to us and we would like to resolve any issues you may have quickly and efficiently. If you do have any concerns at any time, please do not hesitate to contact us.
- If you happen to be unsatisfied with our Services, please let us know as quickly as possible.
- If a dispute arises in connection with these Terms of Service then a party may only deal with that dispute in the manner set out in this clause.
- A party to a dispute which arises in connection with these Terms of Service may give to the other party or parties to the dispute a notice specifying the dispute and requiring its resolution under this clause.
- Within 14 days after a notice is given under clause 16.12(d) (or such longer period as is agreed in writing by the parties to the dispute) each party to the dispute must use its best efforts to resolve the dispute in good faith.
- If despite the parties’ best efforts a dispute is not resolved within 14 days after notice a party may by notice to the other party or parties to the dispute refer the dispute for mediation in accordance with the Mediation Rules of The Institute of Arbitrators and Mediators Australia. The mediation will be conducted by a mediator to be appointed by agreement of the parties or in default of agreement to be appointed by the President of the Law Institute of Victoria or their nominee at the request of a party.
- If the dispute is not resolved within 30 days after the appointment of the mediator any party may take legal proceedings to resolve the dispute.
- The provisions of this clause do not prevent any party from obtaining any injunctive, declaratory or other interlocutory relief from a Court which may be urgently required.
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