- 1.1 These general agreed Termsand Conditions (‘Terms’) apply to all transactions between Digital Canteen Pty Ltd:ABN 61 605 669 083 (‘Digital Canteen’, ‘we’, ‘us’, ‘its’ or ‘our’) and our clients (‘Client’, ‘you’ or ‘your’) in relation to the provision of all services and work product (‘Deliverable[s]’).
- 1.2 If you are a company, we may require a guarantor of your obligations.
- 1.3 All principals of a company, trust or partnership may be required to sign a personal guarantee.
- 1.4 All guarantors (if applicable) may be jointly and severally liable for performance of all of the terms, covenants and conditions under these Terms.
- 1.5 We may require you and any guarantors(if applicable) to jointly and severally authorise us to exchange information about the creditworthiness of either yourself or the guarantors with any credit reporting agency at any time during the period under these Terms.
2 Relationship Between You and Us
- 2.1 Digital Canteen is an independent contractor. We are not an employee of the Clientor of any company affiliated with the Client.
- 2.2 By us providing Deliverables to you, a partnership or joint venture is not created between you and us, and you are not authorised to act as our agent or bind us, unless expressly stated in these Terms or expressly agreed otherwise.
- 3.1 We will provide you with Deliverables in line with your general direction, asdescribed in our proposal documentor any other documentwe deem appropriate (‘Proposal’).
- 3.2 We reserve the rightin our sole and absolute discretion, to determine the manner and means by which Deliverables are accomplished.
- 3.3 We reserve the right to engage and/or use third party developers or other third partyservice providers as independent contractors in relation to Deliverables (‘Design Agents’).
- 3.4 We will use reasonable efforts to provide you with Deliverables within any delivery schedule, timeframe or deadline identified in our Proposal.
- 3.5 We are not responsible for any loss, damage or expenses caused by any failure to observe these Terms, including to provide you with Deliverables in accordance with our Proposal, where such failure is occasioned by causes beyond our reasonable control including but not limited to non-performance or delay by Design Agents or any other third parties,impact, interruption, action or inaction of Design Agents or any other third parties;failure of computers or the Internet, failure of telecommunications or any other technical difficulties, acts of God, fire, flood, riot, strike, war, restrictions and prohibitions, or any other actions by any government or semi government authorities.
- 3.6 We will exercise reasonable efforts to test any Deliverables which require testing and to make all necessary alterations, amendments, modifications or corrections prior to providing Deliverables to you.
- 3.7 You agree to review Deliverables within 5 business days of receiving each Deliverable. You must notify us in writing, within 5 business days of receiving each Deliverable, of any comments and/or failure of such Deliverable to comply with the specifications set out in our Proposal, or of any other objection, alteration, amendment, modification, correction or changeyou require to be made to such Deliverable. Any such written notice must identify with clarity and specificity any comment, objection, alteration, amendment, modification, correction or change. We are entitled to request written clarification of any such comment, objection, alteration, amendment, modification, correction or change and you are required to promptly respond to our request for written clarification.
- 3.8 We will carry out all necessary objections, alterations, amendments, modifications or corrections to Deliverables in a timely manner.
- 3.9 All objections, alterations, amendments, modifications or corrections to Deliverables will be subject to these Terms.
- 3.10 In the absence of receiving written notice from you, the Deliverable will be deemed to be accepted by you and you will assume all responsibility for any errors, omissions, inaccuracies or other defects.
- 3.11 The observation of agreed delivery schedules, timeframes or deadlines under these Terms is of primary importance.
- 3.12 You acknowledge and agree that our ability to meet any delivery schedule, timeframe or deadline identified in our Proposal is dependent upon prompt performance of your obligations to provide us with materials and written approvals and/or instructions pursuant to our Proposal.You further acknowledge and agree that any delays in your performance may delay the provision of Deliverables. Any such delays caused by you will not constitute a breach of any term, condition or obligation by us under these Terms.
- 3.13 Upon giving reasonable prior notice, we reserve the right to reschedulethe timing of Deliverables or consultations with you.
4 Scope of Deliverables
- 4.1 We will notify you if the scope of Deliverables changes, or of additional services requiring added external costs, or of any extra expenses incurred on your behalf.
- 4.2 Unless otherwise provided in our Proposal, and except as otherwise provided for in these Terms, you will pay additional charges for any changes you request or instructions which are outside the scope of Deliverables as described in our Proposal (‘Variations’), or any additional services requiring added external costs, or any extra expenses incurred on your behalf.
- 4.3 Charges for Variations will be on a time and materials basis, at our standard rate of $60.00 per hour and will be in addition to all other amounts, costs or expenses payable under our Proposal,irrespective of any maximum budget, contract price or final price identified in our Proposal.
- 4.4 Wereserve the right to extend or modify any delivery schedule, timeframe or deadlineidentified in our Proposal and to Deliverables, as may be required by any Variations. You acknowledge and agree that any Variations may delay the provision of Deliverables. Any such delays caused by you will not constitute a breach of any term, condition or obligation by us under these Terms.
- 4.5 If you request or instructVariations that result in a revision of at least 15% of the time required to produce Deliverables and/or the value or scope ofDeliverables, we are entitled to provide you with a new and separate Proposal (‘Revised Proposal’) for written approval.
- 4.6 We will commencework on Variations upon receiving a fully signed Revised Proposal and, if required, any additional retainer fees from you.
- 4.7 Where the Deliverables comprise a recurring program of work, as described in our Proposal, the minimum term is 12 months unless otherwise stated in our Proposal.
5 Web Hosting Services
- 5.1 Where web hosting services are supplied by Digital Canteen, we act only as a reseller or licensor of such services from a third party service provider (‘Web Hosting Provider’).
- 5.2 These Terms incorporate the Web Hosting Provider’s terms and conditions as annexed to our Proposal.
- 5.3 By accepting supply of web hosting services through Digital Canteen, you acknowledge and agree to such services being provided by the Web Hosting Provider and to the Web Hosting Provider’s terms and conditions.
- 5.4 We reserve the right to select the most appropriate Web Hosting Provider in our sole and absolute discretion.
- 5.5 We do not make any warranties, representations or covenants about the Web Hosting Provider or web hosting services.
- 5.6 In no event will we be liable or responsible for any of the following in connection with web hosting services:
- 5.6.1 Actions by the Web Hosting Provider that may cause loss, damage or expenses, including but not limited to non-performance, delay, defects, loss of access, impact, disruptions, action or inaction, failure of computers or the Internet, failure of telecommunications, or any other technical difficulties.
- 5.6.2 Actions by the Web Hosting Provider that may cause loss of profits, goodwill, use, data, content or other intangible losses, business interruption or for any direct, indirect, incidental, special, consequential, exemplary or punitive loss or damages.
- 5.6.3 Actions by the Web Hosting Provider that may cause the web hosting services to malfunction, become obsolete, alter the transmission of data, require modification, alteration, amendment or correction, or otherwise affect performance.
- 5.6.4 Defects in the Web Hosting Provider’s device, data, software, equipment or network.
- 5.6.5 Compromised security or exposure to vulnerabilities, viruses, defects or other harmful components that may cause damage.
- 5.6.6 Interception by third parties of personal or other information.
Any such occurrences will not constitute a breach of any term, condition or obligation by Digital Canteen under these Terms.
- 5.7 Any right or remedy you may have in connection to ownership, licensing, performance or compliance of any web hosting services are limited to those rights extended to you by the Web Hosting Provider of such service.
6 6 Price, External Costs and Expenses Incurred on Your Behalf
- 6.1 ‘Price’ means the price given in our Proposal, or our fixed and published price, or the amount agreed between Digital Canteen and the Client, or the amount established by a course of dealing between Digital Canteen and the Client.
- 6.2 The Price given in our Proposal is valid for a period of 2 months from the date of our Proposal, subject to the scope of Deliverables remaining unchanged. We reserve the right to increase or otherwise alter the Price at any time after the 2 months have lapsed.
- 6.3 Subject to Clause 4 - Scope of Deliverables, the Price includes external costs and expenses incurred by us on your behalf. If required, an estimate of external costs and expenses incurred on your behalf may be included in our Proposal.
7 Payment Terms
- 7.1 All invoicesissued by Digital Canteen are due and payable by you within 14 days from the date of the invoice.
- 7.2 If you must make a payment or do any other thing on or by a day that is not a business day, you must make the payment or do the thing on or by the next business day.
- 7.3 By accepting payment of any amount after its due date we do not waive our right either to require payments as they fall due or to suspend or end our arrangements.
- 8.1 You and any guarantor (if applicable)may be in default if you do not pay us when money is due for payment or fail to comply with any obligation under these Terms.
- 8.2 If you are in default, we may send you a default notice. The notice will tell you what the default is and what you are required to do to correct the default. You will have 5 business days to rectify the default from the date of the default notice.
- 8.3 If you do not rectify the default within the timeframe stipulated above:
- 8.3.1 You become immediately liable to pay us all money owing with interest charges on that amount from the due date until payment at the rate of 15% per annum, calculated daily.
- 8.3.2 We reserve the right to withhold delivery and any transfer of ownership of any Deliverables and/or to withhold or revoke all grants by Digital Canteen of any license to use, or the transfer of ownership of any intellectual property rights under these Terms, which are conditional upon receipt of full payment from you, including all outstanding costs, taxes, expenses, fees, interest charges or costs of Variations.
- 8.4 If interest charges are due, any payments madewillfirst be credited to interest charges and next to unpaid amounts.
- 8.5 You acknowledge and agree to pay on default all costs and expenses incurred in exercising our rights of recovery from you and the guarantor, if any, and indemnify us against any losses resulting from the default.
- 8.6 You agree to sign documents or do all things necessary to perfect our rights under these Terms and appoint us as your attorney to sign any document or do anything that may reasonably be required to enforce our rights on default.
9 Representations, Warranties and Covenants
- 9.1 You expressly represent, warrant and covenant that:
- 9.1.1 All information and representations that you, or any person acting on your behalf has given in connection with our transactions are true and correct.
- 9.1.2 You have not failed to disclose to us anything relevant to our decision to have dealings with you.
- 9.1.3 No court proceedings or dispute is current that may have an adverse effect on performing your obligations under these Terms.
- 9.1.4 You own all right, title, and interest in, or otherwise have full right and authority to permit the use of the content which you provide us.
- 9.1.5 The content which you provide us:
- 188.8.131.52 Is not unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, offensive, obscene, hateful, discriminatory (including race, sex, religion, ethnicity, disability, sexual orientation or age), misleading, deceptive or invasive of another’s privacy.
- 184.108.40.206 Does not infringe copyright, trademarks or any other intellectual property rights of any third party, and use of the content as well as any intellectual property in connection with the content does not and will not violate the rights of any third parties.
- 220.127.116.11 Does not give the impression that it derives from any other third party, including Digital Canteen, its directors, officers, employees, consultants, Design Agents or affiliates.
- 18.104.22.168 Does not comprise of unsolicited or unauthorised advertising or promotional materials including junk mail, spam, chain letters, pyramid schemes or other forms of solicitation or advertising.
- 22.214.171.124 Does not contain any malicious code including computer viruses, worms, trojan horses, logic bombs, spyware, adware or any otherprograms which may interrupt, destroy, damage, harm, limit or cause undesirable effects to the functionality of computer software, hardware, networks or telecommunications systems.
- 9.1.6 You shall comply with the terms and conditions of any licensing agreements which govern the use of intellectual property used or supplied by you.
- 9.1.7 You shall comply with all applicable laws and regulations as they relate to Deliverables.
- 10.1 Our services are advisory and based on your directives. You bear sole responsibility for the use and implementation of Deliverables in your businessand assume full responsibility for the ultimate success of Deliverables.
- 10.2 To the fullest extent permitted by law, you acknowledge and agree to forever indemnify and hold Digital Canteen harmless from and against any loss, cost or expense resulting from your activities related to the subject matter under these Terms.
- 10.3 To the fullest extent permitted by law, you acknowledge and agree to assume full responsibility and indemnify us from all liability or expenses which may arise from all kinds of claims, actions, proceedings, suits, judgments, losses, damages, litigation costs and legal fees incurred by you or any third parties arising out of any breach of your responsibilities or obligations, representations or warranties under these Terms.
11 Limitation of Liability
- 11.1 Digital Canteen does not make any warranties, representations or covenants about Deliverables. All Deliverables are provided on an ‘as is’ basis without any warranties or conditions of any kind, whether express or implied.
- 11.2 In all circumstances, the maximum liability of Digital Canteen, its directors, officers, employees, consultants, Design Agentsor affiliates to you for any cost, loss or damages arising out of or in connection with Deliverablesunder these Terms, whether in contract, tort (including negligence) or otherwise at law or in equity is limited to the reperformance of any affected Deliverables, or thePrice of Deliverables, in our sole and absolute discretion.
- 11.3 You should carefully evaluate the accuracy, availability, reliability, completeness, contemporariness or relevance of Deliverables for your purposes.To the fullest extent permitted by law, we do not guarantee or accept any legal liability arising from or connected to the accuracy, availability, reliability, completeness, contemporariness or relevance of Deliverables provided by us.
- 11.4 In no event will we be liable for any loss of profits, goodwill, use, data, contentor other intangible losses, business interruption or for any direct, indirect, incidental, special, consequential, exemplary or punitive loss or damages arising out of or relating to Deliverables provided by us.
- 12.1 You must provide us with at least 30 days’ written notice to terminate the performance of the whole or any part of Deliverables.
- 12.2 Your notice of termination will be effective 30 days from the following payment due date or in the case of a program of recurring work, at the end of the term.
- 12.3 We may terminate Deliverables for any reason upon 30 days’ written notice to you.
- 12.4 These Terms will remain in full force and effect during the 30 day notice period.
- 12.5 Upon receipt of a termination notice from you, we reserve the right to recalculate the cost of Deliverables provided to the effective termination date and charge you accordingly.
- 12.6 Where Deliverables to be provided by us are for an agreed term, at the completion of the term the Deliverables and all related payments to be made by you, will continue until such time as a termination notice is given by either party.
- 12.7 There will be no further or additional liability upon either party beyond the effective termination date. However, termination will not relieve you of your obligations to pay Digital Media for Deliverables, costs, expenses and any other amounts due to us up to the effective termination date. Additionally, you assume full responsibility for any contracts with third parties entered into by us on your behalf that cannot be cancelled.
13 Dispute Resolution
- 13.1 If a dispute arises between you and us, you agree to comply with our dispute resolution process. To this end a party with a complaint against the other is first required to notify the other of the dispute by giving written notice specifying the nature of the dispute, the outcome required, and the action believed necessary under the circumstances that will assist both in settling the dispute.Each party will then in good faith attempt to resolve the dispute by negotiation, and if the dispute in some aspect involves payment of money, the party withholding payment is required immediately upon receipt of the notice to deposit the disputed amount into an escrow account with instructions pertaining to the release of funds. Undisputed amounts must be paid forthwith.
- 14.1 Both you and Digital Canteen must keep these Terms and the Proposal confidential, save for any necessary disclosure to respective legal and financial advisors.
- 14.2 We will make all reasonable efforts to maintain the strictest confidence in relation to all content, material, plans or policies you disclose to us in the course of our dealings with you. However, we may disclose such informationas may be reasonably necessary to Design Agents or any other third parties we engage for the purpose of providing you with Deliverables, or to the Web Hosting Provider for web hosting services.
- 15.1 All notices referred to under these Terms must be made in writing and given by either party:
- 15.1.1 By email to a nominated email address with receipt confirmation, where it will be treated as having been received when it enters the recipient’s information system; or
- 15.1.2 By Registered Post with delivery confirmation, where it will be treated as having been received on the second business day after the date of posting.
16 Entire Agreement
- 16.1 These Terms constitute the entire agreement between you and us and supersede all prior agreements, promises or representations.
- 16.2 You may also be subject to other specific terms and conditions that relate to our transactions with you.
- 17.1 An amendment or variation to these Terms is not effective unless it is in writing and signed by both you and us.
18 Survival and Merger
- 18.1 No term, condition or obligation of these Terms merges on completion of any transaction contemplated by these Terms.
- 18.2 Clause5 - Web Hosting Services,Clause 7- Payment Terms,Clause 8 - Default, Clause 10–Indemnification,Clause 11- Limitation of Liability,Clause 13- Dispute Resolution, and Clause 14- Confidentiality survive termination or expiry of these Terms, together with any other term, condition or obligation which by its nature is intended to do so.
19 Waiver and Amendments
- 19.1 Any waiver by either you or us to a breach of these Terms should not be deemed to be a waiver of a subsequent breach of the same or of a different kind.
- 20.1 If any part of these Terms is deemed invalid or unenforceable, then those parts may be severed and the other parts of these Terms remain unaffected and continue in full force and effect.
21 Governing Law
- 21.1 These Terms and any obligations arising out of or in relation to these Terms are governed by the laws of New South Wales, Australia. You acknowledge and agree that the courts of New South Wales have exclusive jurisdiction to settle any claim or dispute which may arise out of or in relation to these Terms.