Terms And Conditions

The Services

1.

The Client engages Fairfax to provide the range of Services set out in Item 1 of the Schedule.

Term of Agreement

2.1

This Agreement commences on the Commencement Date and continues for at least a period of twelve (12) calendar months (“the Initial Period”).

2.2

After the expiration of the Initial Period, this Agreement shall continue until terminated in accordance with clause 2.3.

2.3

This Agreement may be terminated by either party by the giving of one (1) calendar month’s notice in writing to the other party.

2.4

Should the Client terminate in accordance with clause 2.3 at any time prior to the expiration of the Initial Period, the Client shall be liable to Fairfax for the Initial Fee, Additional Costs and Subscription Fees payable during the Initial Period.

Timeframe for Delivery of Website

3.1

The time frame required by Fairfax to complete the Website will generally vary from one (1) day to four (4) weeks depending on the specific requirements of the Client, and commences on receipt of payment of the Initial Fee. Fairfax will notify the Client of the Estimated Launch Date once the specific requirements of the Client are known.

3.2

As soon as Fairfax becomes aware that this time frame may be exceeded, Fairfax shall advise the Client of that possibility and provide the Client with a new estimate of the time frame.

3.3

Fairfax discloses and the Client acknowledges that any variation in the timeframe will be affected by any of the following:

1. the receipt by Fairfax of all required information and images from the Client;
2. the receipt by Fairfax of approval of the design by the Client; and
3. the requirement for additional customised functionality outside original requirements.

4.

While Fairfax endeavours to keep any timeframes and indicative dates, if there is any delay of performance of the Services, for any reason whatsoever, such delay will not entitle the Client to claim for any consequential loss or damage or to cancel, rescind or terminate the Agreement.

Payment

5.

Upon the making of this Agreement the Client shall pay to Fairfax the Initial Fee plus fifty per cent (50%) of the Additional Costs, and the remaining fifty per cent (50%) of the Additional Costs shall be paid with the first Subscription Fee before the Website is made available to the public.

6.

The Client shall pay the Subscription Fee by monthly instalments in advance, by any one of the following methods:

1. direct debit to the Client’s nominated credit card or bank account seven (7) days subsequent to the service of a tax invoice (“the Due Date”), which shall be served no earlier than seven (7) days prior to the monthly anniversary of the Commencement Date. In the event that there are insufficient funds, Fairfax shall be entitled at its absolute discretion to send the Client an email notifying the Client of the failure of the payment. Fairfax may then re-process the payment.
2. direct deposit by the Client into Fairfax’s nominated bank account on or before the Due Date.
3. the provision of a cheque on the Due Date. Fairfax shall be entitled to charge the Client a $11.00 (inc GST) cheque handling fee and any dishonoured cheque shall incur a dishonour fee of $66.00 (inc GST).

7.

The Subscription Fee shall be paid as directed by Fairfax and shall be paid free and clear of any and all deductions, set-offs or counter-claims.

8.

The Client agrees to pay all applicable taxes, duties or levies (including goods and services tax, value added tax, gross receipts tax or any other tax or charge or impost of a similar nature payable in respect of goods or services supplied in connection with this Agreement, including as defined in A New Tax System (Goods and Services Tax) ACT 1999 (Cth).)

9.

Notwithstanding clause 2, Fairfax may, at its option and without prejudice to any of its rights, either suspend supply of the Services, require payment in advance or terminate the agreement by written notice to the Client where the Client:

1. defaults on any payment due under the agreement;
2. being a natural person, commit an act of bankruptcy;
3. being a corporation, is subject to:
   1. a petition being presented, an order being made or a meeting being called to consider a resolution for the Client to be wound up, deregistered or dissolved;
   2. a receiver, receiver and manager or an administrator under Part 5.3A of the Corporations Act 2001 being appointed to all or any part of the Client’s property and undertaking;
   3. the entering of a scheme of arrangement (other than for the purpose of restructuring); or
   4. any assignment for the benefit of creditors.

10.

Any further work or provision of services by Fairfax to the Client outside of the scope of the Services shall be charged by Fairfax at a rate to be determined by agreement between the parties.

11.

All payments made to Fairfax must be in Australian Dollars.

Acceptance of the Services

12.

All claims against Fairfax regarding the quality, nature, fitness, suitability, conformance with description or defects in the provision of the Services must be made in writing to Fairfax within ten (10) days of performance of the Services. Fairfax does not accept any liability for any such claim not made in accordance with these terms.

13.

Any reliance on or usage of the Services shall be deemed as a waiver of all claims by the Client.

14.

In the event that Fairfax receives a claim from the Client in accordance with these terms, Fairfax may:

1. reduce the contract price by agreement with the Client; or
2. replace the Services,

and no additional claims of any nature whatsoever may be made against Fairfax.

Duties of Client

15.

The Client shall be solely responsible for the content of the website and any postings, data or transmissions using the Services or any other use of the Services by the Client, its customers or any third party the Client permits to use the Services.

16.

The Client warrants that neither it nor any user will use the Services for unlawful purposes (including, without limitation, infringement of intellectual property rights, misappropriation of monies, personal details of third parties or trade secrets, fraud, invasion of privacy, pornography, obscenity, defamation, distribution of unsolicited advertising or emails, and for the purposes of any illegal or unlawful pursuit).

17.

Fairfax may immediately suspend or cancel the Services without any prior notice if Fairfax believes, on reasonable grounds, that the above warranty has been breached.

18.

Fairfax discloses that the individual data contained in the Content Management System will not be archived by Fairfax and that all event related data, including but not limited to transactions, news items, emails, and expired members’ details will be purged on an ongoing basis. The Client agrees to take all responsibility for creating back-up files and physical copies of all data, documents and information and acknowledges that Fairfax bears no such responsibility.

Warranties and Representations

19.

Any advice, recommendation, information, assistance or service given by Fairfax in relation to the Services and the provision of the Website and its use or application is given in good faith and is believed to be accurate, appropriate and reliable at the time it is given, but is provided without any warranty as to accuracy, appropriateness or reliability and Fairfax does not accept any liability or responsibility for any loss suffered from the Client’s reliance on such advice, recommendation, information, assistance or service.

20.

The Client acknowledges that Fairfax has represented to the Client that computer software and technology is not immune to failure or corruption due to defects or acts or omissions by third parties. Fairfax will do all things reasonable necessary to remedy and avoid such failures and corruption but in that regard Fairfax is unable to make representations that the software is failsafe or unable to be corrupted. Notwithstanding these representations, the terms of this Agreement that exclude or limit Fairfax’s liability will apply only to the extent permitted by law.

Exclusion and Indemnity

21.1

Fairfax will not be liable for any loss or damage, whether arising in contract, tort or otherwise, sustained by the Client in connection with the Services. Such loss or damage may include, but is not limited to, loss or damage caused by the negligence or wilful act or default of Fairfax or its servants or agents, whether consequential or otherwise and whether or not such loss or damage is reasonably foreseeable.

21.2

This Agreement contains all the warranties and conditions given by Fairfax in connection with the Services and to the extent that Fairfax may exclude any warranties or conditions which might otherwise be implied by any competent legislation then Fairfax excludes from application all such implied warranties and conditions.

22.

The Client agrees to indemnify Fairfax and its servants and agents and keep Fairfax indemnified in respect of any claim or demand made, or action commenced by any person or entity against Fairfax, or for which Fairfax is liable in connection with any loss or damage suffered in connection with the provision of the Services, or the subject matter of this Agreement including, but not limited to any legal costs as between solicitor and client incurred by Fairfax or for which Fairfax is or may become liable.

Interest

23.

If the Client defaults in the payment of any money due to Fairfax pursuant to the terms and conditions of this Agreement on the due date for payment, then in addition to any other rights which may be conferred upon Fairfax by law or equity, Fairfax will be entitled to be paid interest by the Client on such money at the rate of ten per cent (10%) per annum calculated daily from the date of such default until payment to Fairfax.

Confidential Information

24.

1. (a) Unless:
   1. the Client provides written authority; or
   2. for the purposes of fulfilling the Services, or
   3. as required by law,
   Fairfax shall not at any time:
   1. use;
   2. copy or reproduce; or
   3. disclose to any third party including another employee of the Client (but excluding the Client’s Directors),
   any Confidential Information.
2. Fairfax may only communicate such to a third party outside the Client, in the course of providing the Services and:
   1. where it is done so in the third party’s capacity as public servant; or
   2. where the third party has signed a confidentiality agreement required by the Client.
3. At all times, Fairfax is to take all reasonable steps to maintain the confidentiality of all Confidential Information within its possession or control. This includes but is not limited to ensuring that physical items containing Confidential Information:
   1. cannot be accessed by any person not authorised by the Client to access Confidential Information; and
   2. are not left unattended unless absolutely necessary; and
   3. are secured in a locked place where it is absolutely necessary to leave such items unattended; and
   4. are not provided any third party unless the Client has provided its prior written consent and such third party has committed itself to the same level of confidentiality as is required by this Agreement of Fairfax.
4. Where Fairfax is unsure whether particular information constitutes Confidential Information, Fairfax is to treat the information as Confidential Information.
5. Fairfax agrees to keep confidential all information obtained by Fairfax in the process of providing the Services regarding the carrying on of any unlawful or criminal activity unless required to disclose such information by law.
6. The obligations of Fairfax arising out of this clause continue even after termination of this Agreement.

Guarantee and indemnity

25.

Each of the persons named in Item 4 of the Schedule (“the Guarantors”) guarantees to Fairfax that the Client will comply with all the Client’s obligations under this Agreement at the time that they should be complied with.

26.

Each of the Guarantors agrees to indemnify Fairfax for any loss Fairfax suffers as a result of the Client not complying with its obligations under this Agreement.

27.

The guarantee and indemnity in this Clause is a continuing guarantee and indemnity and they will not come to an end until released in writing by Fairfax.

Dispute Resolution

28.

Both parties agree that, subject to the other provisions of this Agreement, where a dispute arises between them relating to subject matter of this Agreement, they:

1. will notify the other party of the particulars of any complaint or claim they may have in writing as soon as practicable after the event or circumstance leading to the complaint or claim arises (“the Dispute”);
2. will initially attempt to resolve the Dispute by meeting and conferring on the matter to reach a negotiated resolution;
3. agree that either party may refer the Dispute to mediation (and notify the other party of the intention to so refer the matter) if the Dispute remains unresolved by 5pm on the tenth business day after the Dispute is first notified in accordance with sub-paragraph (a);
4. agree that where either party refers the Dispute to mediation, both parties will attend and participate in the mediation;
5. where the parties are required or agree to mediate, agree that:
   1. the parties will appoint Resolve Australia, currently of 160 Bourke Street East Sydney, as mediator; or,
   2. if, within seven (7) days of notification of the intention to mediate, Resolve Australia is unable or unwilling to act and the parties cannot agree to a mutually satisfactory alternative, the President of the Law Society of NSW shall be asked to nominate a mediator and the parties shall appoint that nominee;
6. agree that the mediator shall determine the manner of conducting the mediation;
7. agree that the parties will share equally in the costs of mediation;
8. acknowledge the right of either party to appoint, in writing, another person to act on behalf of the party in relation to the mediation process; and
   1. agree not to commence any legal or other enforcement proceedings or cause any other person or entity to commence such proceedings on its behalf (other than seeking urgent injunctive relief) unless:
   2. the party initiating the action has fully complied with the Dispute resolution clause and, where the Dispute has been referred to mediation, the other party has refused to mediate; or
   3. the Dispute is not resolved within ten (10) business days of the commencement of mediation; or
   4. neither party refers the Dispute to mediation and the Dispute is not resolved within twenty (20) business days of notification of the Dispute pursuant to sub-paragraph (a).

Notices

29.

Service of any notice under or relating to this Agreement shall be sufficiently served:

1. if delivered personally to:
   1. Fairfax, to be given to Joshua Fairfax; or
   2. the Client, to be given to any Director of the Client, or if the Client is an individual or partnership, to the Client or any partner of the Client.
2. if left at or sent by pre-paid post to the address of the party stated in Item 5 of the Schedule or any address notified to the other party in writing, and in the case of posting such notice shall be deemed to have been duly served on the second day after such notice has been posted; or
3. if sent by facsimile transmission to the facsimile number of the party stated in Item 5 of the Schedule or any change in such number notified in writing) and shall be deemed to have been duly served at the time such facsimile transmission is sent.

Force Majeure

30.

Should circumstances beyond Fairfax’s control prevent or hinder its performance of the Services, Fairfax will be free from any obligation to perform the Services while such circumstances continue. For as long as such circumstances exist, Fairfax may, at its option, cancel, rescind or terminate all or any part of this Agreement or keep the agreement on foot until such circumstances have ceased. Such circumstances beyond Fairfax’s control, but are not limited to: strikes, lockouts, rebellions; fire; acts of God; acts of terrorism; shortages of materials; Government decrees, proclamations or orders; transport difficulties; and failures or malfunctions of computers or other information technology systems.

Void, Voidable or Unenforceable Provisions

31.

If any provision of this Agreement at any time be or become void, voidable or unenforceable, the remaining provisions of this Agreement shall nevertheless continue to be in full force and effect.

Proper Law

32.

This Agreement will be governed by and construed pursuant to the laws of the state of New South Wales and the parties agree to submit to the jurisdiction of the Courts of the state of New South Wales in connection with any dispute relating to this Agreement.

Severability

33.

Any provision of the terms and conditions of this Agreement which is prohibited or unenforceable in any jurisdiction will, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions of this Agreement or affecting the validity or enforceability of such provisions in any other jurisdiction.

Whole Agreement

34.

These conditions of trade apply to all transactions between the Client and Fairfax, including all quotations, offers, contracts, or services rendered.

35.

These conditions (which will only be waived or varied in writing signed by Fairfax) will prevail over all conditions of the transaction to the extent of any inconsistency.

Definitions

36.

In this Agreement:

“Additional Costs” means the sum referred to in Item 3(b) which relates to the configuration of custom functionality or custom content.

“Commencement Date” means the date stated in Item 2 of the Schedule, being the earlier of:

1. the actual launch date of the Website to be built by Fairfax for the Client pursuant to this Agreement; or
2. the Estimated Launch Date of the Website, where the actual launch date is delayed by reason of the delay in delivery to Fairfax of materials by the Client as per clause 3.3.

“Confidential Information” means any knowledge or information acquired or learned by Fairfax during or in connection with Fairfax’s engagement by the Client, about or relating to the Client, its business and operations, and shall include (but is not limited to):

1. Customer lists and the following customer information:
   • names and addresses,
   • key personnel,
   • finance and credit details,
   • bank account details;
   • service needs;
   • profiles, preferences, attitudes and idiosyncrasies, and
   • all other marketing research concerning them;
2. the structures, specifications, designs or licensing of any compiled or uncompiled software or hardware authored or designed or used by the Client;
3. the contents of any board meetings or conversations between the Client and any other person regarding the client or its business;
4. the Client’s training programs, systems or materials;
5. all financial records of the Client (that are not documents on the public record) including:
   • journals,
   • bank reconciliations,
   • profit and loss statements,
   • trial balances,
   • bank records,
   • bank account numbers,
   • cash flow analyses,
   • correspondence,
   • cash summaries,
   • accountants’ documents and correspondence,
   • G.S.T. returns including B.A.S. statements,
   • taxation documents (including correspondence or notices from the A.T.O.),
   • debtor and creditor reports;
6. security (including passwords and security access codes) and cash handling details of the Client;
7. marketing plans of the Client;
8. personnel (or contractor’s) names, addresses and phone numbers, rosters, salary or wage information, medical or criminal records;
9. all documents and the contents of any conversation associated with current and potential business opportunities including:
   • feasibility studies;
   • project plans and diagrams;
   • reports monitoring and assessment documents;
   • tender documents;
   • contract negotiations;
   • costings and budgets;
10. details of any:
    • legal advice received by the Client,
    • litigation involving the Client,
    • instructions given by the Client to legal advisors,
    • notices or correspondence with local councils, the workcover or workhealth authorities, government departments, the Patents Office, Office of State Revenue, departments of fair trading or consumer affairs, the Australian Taxation Office or state or federal police services.

“Content Management System” means that portion of a website which is used to administer and manage the content of the website, access to which is restricted by username and password.

“Estimated Launch Date” means the date that construction of the Website would normally be completed and the Website uploaded to the web server for general public viewing as estimated by Fairfax once the specific requirements of the Client are known.

“Initial Fee” means the sum which relates to the creation of the website

“Subscription Fee” means the sum which relates to the provision of the Services (other than the creation of the website)

“Services” means all services provided to the Client by Fairfax as described in Item 1 of the Schedule

SCHEDULE

Item 1

The Services to be provided under this Agreement shall be:

• To build and provide access to an editable e-commerce website (“the website”) to the Client which as standard includes the following modules:
  1. Member and Staff management
  2. e-store (product catalogue, pricing, customers, orders and invoicing and payment processing)
  3. News / announcements
  4. Search Engine Optimisation
• To provide the Client with a monthly subscription to access and use the website Content Management System, provide hosting, domain name registration and renewal (if registered by Fairfax) and the use of Fairfax’s e-commerce facility and payment gateway (if required).
• To provide free upgrades of core software and access to new modules* to the Client as they are created.
• To provide maintenance and telephone/email support during normal business hours.
• To incorporate custom funtionality as requested

* New modules may incur an additional fee