Terms of Service Agreement
COLLABORATIVE SOLUTIONS AND DESIGN PTY LTD
Terms of Service Agreement
BETWEEN Collaborative Solutions and Design Pty Ltd (ACN 616 278 007) of 32A Doveton Street North, Ballarat Central, 3350 (“us”)
AND The Client set out in the Quote (“you”)
In this Agreement:
(a) Agreement means this agreement, including any Quote;
(b) Approved Budget means the budget set out in the Quote, as modified in accordance with this Agreement from time to time;
(c) Australian Consumer Law means Schedule 2 of the Competition and Consumer Act 2010 (Cth);
(d) Consequential Loss means:
(i) any loss of income, profit or business;
(ii) any loss of goodwill or reputation; and
(iii) any pure economic loss and any increased operating costs, suffered or incurred by any person whether arising in contract, tort (including negligence) or otherwise or under any statute;
(e) Deliverables means any deliverables specified out in the Quote;
(f) Parties means the parties to this Agreement;
(g) Product means any product delivered in connection with the Services;
(h) Project means the project described in the Quote;
(i) Quote means the Quote attached to this Agreement and any subsequent Quote which forms part of this Agreement, as modified in accordance with this Agreement from time to time;
(j) Rate means the rate set out in the Quote or, if no rate is specified, our current hourly rate as determined by us;
(k) Scope means the scope described in the Quote;
(l) Service Fees means the fees described in the Quote;
(m) Services means the services described in the Quote; and
(n) Term means the term of this Agreement.
This Agreement is governed by the laws of Victoria and the parties irrevocably submit to the non-exclusive jurisdiction of the courts of that State.
In the interpretation of this Agreement:
(a) Parties must perform their obligations on the dates and times fixed by reference to the capital city of Victoria;
(b) Reference to an amount of money is a reference to the amount in the lawful currency of the Commonwealth of Australia;
(c) If the day on or by which anything is to be done is a Saturday, a Sunday or a public holiday in the place in which it is to be done, then it must be done on the next business day, unless otherwise agreed between the Parties;
(d) References to a party are intended to bind their executors, administrators and permitted transferees.
In consideration of you paying our Service Fees, we agree to provide the Services on the terms and conditions set out in this Agreement, which includes terms and conditions specified in any Quote entered into between us from time to time. A Quote will set out the specific services to be provided by us, anticipated deliverables and the relevant pricing. All Quotes must be accepted in writing by both parties to be effective.
4. Provision of the Services
We agree that we must:
(a) adhere to the Approved Budget (if any), Service Fees, Scope and Deliverables and any variations approved by you;
(b) act in all matters promptly, diligently and honestly and exercise all due care, skill and attention in providing the Services; and
(c) do all things necessary to ensure that the Services are provided to the reasonable satisfaction of the Client
and will not, except as directed by you, do anything that is not contemplated by the Agreement or the items above.
5. Provision of Information
You must provide us with all information, documents, images, text or things which are reasonably necessary for us to provide the Services, and you agree to provide such information within a reasonable timeframe of any request by us. We will not be responsible for any delay in performance of the Services which arises because of your delay in providing information.
You must provide us with accurate information, documents, images, text or things and you hereby indemnify us for any loss or damage arising or incurred by you or any other person as a result of your providing inaccurate or unlawful information, documents, images, text or things.
On completion of the Project, you will be responsible to proofread and error-check all works and agree to notify us within two (2) business days of any errors or mistakes requiring rectification. You hereby indemnify us for any loss or damage arising or incurred by you or any other person as a result of errors or mistakes (including, but not limited to, typographical or grammatical errors) subsisting after that period, where no notification was received by us during the specified period.
The Parties agree that the engagement contemplated under this Agreement commences on the date of this Agreement and will continue until:
(a) the agreed work is completed,
(b) any completion date set out in a Quote, or
(c) terminated by either party at any time,
unless otherwise agreed by the Parties in writing.
7. Payment and Invoicing
(a) You must pay us in accordance with the Quote in the manner and at the times provided for in this Agreement.
(b) Where we are entitled to invoice you for all or part of the amount owed to us under this Agreement, such invoices must be paid in accordance with the terms of any invoice.
(c) If you instruct a change to the Services, then the Services Fees will be increased or decreased (as the case may require) by a reasonable amount in respect of the change to the Services. In determining the reasonable amount, we will have regard to the Rate. Once the amount has been determined, we will notify you. If you instruct us to continue with the Services after the notice has been delivered, you will be liable to pay the reasonable amount to us on our rendering an invoice for the amount.
(d) We reserve the right to request a sum on deposit before providing Services where a change has been requested by you.
(e) Time is of the essence in respect of this clause. Payment strictly in accordance with this clause is a condition of this Agreement, breach of which will give rise to a right to terminate this Agreement.
(f) If you default in the payment of any money due to us pursuant to this Agreement (including any deposit requested in accordance with this clause) on the due date for payment, then in addition to any other rights which may be conferred upon us by law or equity or this Agreement, we will be entitled to terminate this Agreement and be paid interest on such money at the rate that is 4% above the cash rate last published by the Reserve Bank of Australia before that period commenced.
8. Expenses of Tech Studio
External expenses such as web hosting fees, domain provider charges and software purchase fees, if necessary, will be passed on to you as per any Quote or other agreement between the Parties.
We will ensure you have satisfactory information regarding the progress of the Services, including:
(a) providing regular written or verbal updates to you as necessary; and
(b) promptly replying to any communication or request from you.
10. Intellectual Property and Moral Rights
(a) You acknowledge and agree that we are the exclusive owner of all intellectual property in all works developed by us, any of our employees or any of our agents in the course of, as a consequence of or in relation to providing the Services.
(b) We agree to assign all rights and entitlement to all intellectual property referred to in this clause to you on completion of this Agreement. We will do all things, sign all documents or cause all documents to be signed that may be necessary to vest such intellectual property in you within a reasonable period of completion.
(c) Assignment of intellectual property referred to in this clause is conditional on you strictly complying with all your obligations under this Agreement and irrevocably authorising us to use or reproduce the intellectual property for the purpose of marketing of our business, including by displaying the intellectual property on our website.
(d) To the extent that any moral rights are vested in us, any of our employees or any of our agents in relation to the Services, we will use reasonable endeavours to procure that each person in which such moral rights are vested waives those rights and consents to your unfettered use, treatment, alteration and attribution of the work created by those persons.
(e) This clause does not apply to any intellectual property rights subsisting or belonging to any person not a party to this Agreement.
(f) The operation of this provision will continue beyond the expiration or termination of this Agreement.
(a) The Parties covenant on behalf of themselves and their financial, legal and other advisors that they will keep confidential and not divulge either directly or indirectly to any person any confidential information relating to the business, processes, systems or affairs of the other party which is not otherwise in the public domain, including the terms of this Agreement, save to the extent that the disclosure may be required by statute or may reasonably be required for the purpose of enabling the Parties to fulfil their respective obligations under this Agreement or as may otherwise be required by law.
(b) This clause survives termination of this Agreement.
12. Electronic Communication
(a) The parties will communicate electronically in pursuance of this Agreement, using email and data storage devices. You acknowledge and agree as follows:
(i) there are some delivery risks in using email and you accept the risk of interception of the email by third parties or of non-receipt or delayed receipt of the message; and
(ii) computer viruses and similar damaging items can be transmitted through emails and by introducing data storage devices into a system. We use virus-scanning software to reduce these risks and request that you do the same. You acknowledge that it is not possible to eliminate the risk of introducing viruses altogether.
(b) You hereby release us from all claims, losses, expenses and liabilities caused by any of the risks referred to above and arising directly or indirectly out of that communication.
13. Website Security
(a) During the Term, we will endeavour to ensure that the Services and any Product are protected from misuse, damage, destruction, malware/viruses or any form of unauthorised use.
(b) Upon completion, we will provide you with a login, password and access information. We may retain our login, password and access information, however you will be solely responsible for the use, supervision, management and control of the Product. We will not be obliged to use, supervise, manage, maintain or control the Product at any point after delivery to you.
(c) You hereby indemnify us in respect of any claim or demand made or action commenced by any person against us or for which we are liable in connection with any loss or damage suffered as a result of misuse, damage, destruction, malware/viruses or any form of unauthorised use of the Product arising after completion, including but not limited to any legal costs as between solicitor and client incurred by us or for which we are liable, unless otherwise set out in this Agreement.
(a) Either party may terminate this Agreement at any time on giving written or verbal notice to the other party.
(b) If either party breaches a material term of this Agreement, then the other party may give a written notice to remedy the breach and if the party fails to remedy the breach within 28 days of that notice to the extent capable of remedy the other party may terminate this Agreement.
(c) This Agreement is automatically terminated if the Parties are unable to resolve a dispute, as set out in clause 18 (Dispute Resolution).
(d) If this Agreement is terminated pursuant to this clause, we will be in no way obligated to assign any intellectual property in any works created in the performance of this Agreement to you, however we may elect, in our absolute discretion, to assign the intellectual property, or any part thereof, to you or any other person on such terms as we deem fit.
(e) If you:
(i) are unable to pay your debts as they fall due;
(ii) commit an act of bankruptcy;
(iii) enter into a composition or arrangement with your creditors or call a meeting of creditors with the view to entering into a composition or arrangement;
(iv) have execution levied against you by creditors, debenture holders or trustees under a floating charge;
(v) take or have taken or instituted against you any actions or proceedings, whether voluntary or compulsory, which has the object of or which may result in your winding up (except for the purposes of reconstruction);
(vi) have a winding up order made against you or (except for the purposes of reconstruction) pass a resolution for winding up;
(vii) are a party to the appointment of or have an official manager, receiver, receiver/manager, provisional liquidator or liquidator appointed to the whole or part of your property or undertaking; or
(viii) repudiate this Agreement,
then we may at any time, without prejudice to any other rights or remedies, by written notice to you, terminate this Agreement.
(f) Following termination, we will submit a final tax invoice to you to be paid in accordance with this Agreement and its terms and thereafter the relationship of the Parties will be at an end. If entitlement to payment is specified in this Agreement by way of reference to Deliverables, we will be entitled to a pro-rated payment for work done in pursuance of those Deliverables, or payment in accordance with the Rate, whether or not those Deliverables have been completed or achieved, plus reimbursement of any expense reasonably incurred by us prior to the date of receipt of the notice of termination in contemplation of us providing the balance of the Services.
(g) If termination under this clause is disputed, it will be dealt with in accordance with the dispute resolution provisions of this Agreement.
(h) Termination of the Agreement will not prejudice any rights or remedies already accrued to any party under, or in respect of, any breach of this Agreement.
(a) The failure of either party at any time to enforce any of the terms of this Agreement or any rights in respect to this Agreement or to exercise any election provided in this Agreement will not be a waiver of such provisions, rights or elections or affect the validity of this Agreement.
(b) The exercise of a power or right does not preclude:
(i) its future exercise; or
(ii) the exercise of any other power or right.
(c) The variation or waiver of a provision of this Agreement or a party’s consent to a departure from a provision by another party will be ineffective unless in writing executed by the parties.
16. No Disparagement
Subject to law and the rights of the Parties in connection with the enforcement of this Agreement, no party may at any time:
(a) disparage, permit or authorise the disparagement of any of the other Parties, any of their related entities or any director, officer, employee, agent, consultant or adviser of the other Parties or of their related entities; or
(b) otherwise make, permit or authorise the making of any statement in any way relating to or connected with any matters in dispute which is calculated or is reasonable likely to cause damage to any of the other Parties, any of their related entities or any director, officer, employee, agent, consultant or adviser of any of the other Parties or their related entities (including damage to their respective reputations).
Nothing in this clause prohibits any party from leaving an honest review on any peer review or social media site. The Parties agree that, where a review may be perceived as negative or less than favourable, the party intending to submit the review will first contact the other party to attempt to resolve any issue in good faith, prior to submitting the review.
This clause survives termination of this Agreement.
17. Retention of Title
Notwithstanding delivery of any Services to you, legal ownership in and title to all documents, designs, records, papers, titles and any other material created or obtained by us in the performance of this Agreement, belongs to us and does not pass to anybody, until the project is completed and all outstanding fees, costs and disbursements have been paid. We reserve the right to retain possession of all those documents, designs, records, papers, titles and any other materials, until all outstanding amounts have been paid. We reserve the right to provide watermarked or locked copies of documents or designs to you until invoices relating to the work have been paid, at which time we will release the editable versions of the documents or designs to you.
18. Dispute Resolution
If a dispute arises out of or relates to this Agreement (Dispute), neither party may commence any court or arbitration proceedings relating to the dispute unless they have complied with this clause, except where they seek urgent interlocutory relief.
If a Dispute arises, the party claiming that a Dispute has arisen agrees to contact the other party, and the Parties agree to endeavour to resolve the Dispute expeditiously by informal negotiation.
(c) Termination for unresolved dispute
The Parties agree that where a Dispute remains unresolved in within 14 days of the other party becoming aware of the dispute, the Agreement will automatically terminate and the termination will be effective as of the 15th day.
(d) Notice specifying the nature of the dispute
If a Dispute remains unresolved after termination in accordance with this clause, the party claiming the ongoing Dispute must give written notice to the other party and, on receipt of the notice referred to in this clause by that party, both Parties must endeavour to resolve the dispute expeditiously using informal dispute resolution techniques such as mediation, expert evaluation, determination or similar techniques agreed by them.
(i) If the Parties do not agree within seven (7) days of receipt of the notice, or such further period as agreed in writing by them, as to the dispute resolution technique and procedures to be adopted, the timetable for all steps in those procedures and the selection and compensation of the independent person required for such technique, then they must mediate the dispute in accordance with the mediation rules of the recognised professional association for solicitors in the State of Victoria.
(ii) The president of this professional association or the president’s nominee will select the mediator and determine the mediator’s remuneration.
If the mediation referred to above is not completed within four (4) weeks of reference to a mediator then either party may commence any court or arbitration proceedings relating to the dispute as they see fit.
(g) Associated costs
The costs of the mediation will be borne equally by the parties.
(h) Survival of this clause
This clause survives termination of this Agreement.
We warrant at all times during the term of this Agreement that we are a company duly incorporated in Australia and have the power and authority to enter into this Agreement on the terms set out herein.
You warrant at all times during the term of this Agreement that the details supplied by you in preparation of this Agreement or any Quote are true and correct and that you have the power and authority to enter into this Agreement on the terms set out herein.
20. Limitation of Liability
(a) To the extent permissible by law, we will not be liable for any loss or damage, whether arising in contract, tort or otherwise, sustained by you or any other person in connection with this Agreement or the subject matter of this Agreement. Such loss or damage may include, but is not limited to, loss or damage caused by the negligence or wilful act or default of us or others, whether consequential or otherwise and whether or not such loss or damage is reasonably foreseeable. This Agreement contains all the warranties and conditions given by us in connection with the subject matter of this Agreement and to the extent that we may exclude any warranties or conditions which might otherwise be given or implied by any competent legislation then we exclude from application all such warranties and conditions.
(b) Nothing in this Agreement excludes any right or warranty to which you are entitled under the Australian Consumer Law.
(c) If this Agreement constitutes a supply by us to you for the purposes of the Australian Consumer Law, if we or any of our employees, sub-contractors or agents fails to comply with any condition, warranty or guarantee, including a consumer guarantee under Division 1 of Part 3-2 of the Australian Consumer Law (other than a guarantee under section 51, 52 or 53), then our liability for breach of the guarantee is limited, at our option, to one or more of the following:
(i) the supplying of the Services again;
(ii) the payment of the cost of having the Services supplied again; or
(iii) such other remedy as is fair and reasonable in the circumstances and which we are ready and willing to provide
and in any case, we will not be liable for any consequential loss or damage or other direct or indirect loss or damage.
21. Events Beyond Control
Neither party will be liable to the other party for any loss caused by any failure to observe the terms and conditions of this Agreement, where such failure is occasioned by causes beyond its reasonable control. Such causes may include, without limitation, unavailability of services, strikes, lockouts, Acts of God, war, fire, flood, embargo, litigation and acts of government.
In any such event, the time for performance of the obligations under this Agreement will be extended by the same period or periods (as the case may be) for which performance is delayed. The party so affected will use its best endeavours to avoid or remove such causes of non-performance and will continue performance under this Agreement as soon as such causes are removed, or terminate this Agreement where the delay is extensive.
22. No Reliance on Warranties or Representations
In entering into this Agreement, each party:
(a) has not relied on any warranty or representation (whether oral or written) in relation to the subject matter of this Agreement made by any person; and
(b) has relied entirely on its own enquiries in relation to the subject matter of this Agreement.
This clause does not apply to warranties and representations that this Agreement expressly sets out.
A notice or other communication to a party must be in writing and delivered to that party in one of the following ways:
(a) delivered personally;
(b) posted to their address when it will be treated as having been received on the second business day after posting; or
(c) sent by email to their email address when it will be treated as received when it enters the recipient’s information system.
The scope of the Services may change and the contract scope may be varied to achieve the desired outcome. Any change to the Approved Budget, Service Fees, Scope and Deliverables must be agreed by the Parties, unless otherwise set out in this Agreement.
This Agreement has been prepared on our behalf. You acknowledge and agree that, before accepting this offer, you have been afforded the opportunity to negotiate these terms. If you do not return the signed agreement or negotiate the terms, but instruct us to commence work, that will be taken to be an acceptance of the terms of this Agreement, and the date of this Agreement will be taken to be the date of that acceptance and costs will be charged in accordance with this Agreement.