1.1 These Terms apply to all Services provided by us to you, commencing at the time you engage us to carry out the Services and, subject to clause 6.1, expiring on the later of the date set out in the Proposal or the last day for delivery of the Services.
1.2 If you engage us to carry out the Services, whether by accepting a Proposal or otherwise instructing us to perform the Services, that engagement will constitute acceptance of these Terms.
1.3 Unless agreed in writing by us, these Terms apply to the exclusion of all prior discussions, representations, understandings and arrangements, and all conditions and warranties (written or oral, express or implied) and other representations whether or not endorsed or delivered with or referred to in any offer or order from you to us.
1.4 We may vary or amend these Terms at any time by notice to you and any variations or amendments will apply to Services provided from the date of the notice.
1.5 An update to the Terms published on our website will constitute adequate notice to you under clause 1.4.
1.6 The agreement between you and us comprises these Terms and each Proposal. In the event of any inconsistency between these Terms and a Proposal, the Proposal shall take precedence provided that any provision in the Proposal which amends or varies any provision of these Terms:
- shall not be considered an inconsistency; and
- shall only apply for the purposes of that Proposal (and shall not otherwise amend or vary these Terms or any other Proposal).
2. Fees and Payment
2.1 In consideration for us providing the Services you must pay the Fees, as set out in a Tax Invoice provided to you.
2.2 Prices quoted for the Services are exclusive of GST and any other taxes or duties imposed on or in relation to the Services.
2.3 If you request any variation to the Services or any Services provided fall outside the scope of the Proposal, additional fees will apply based on our Rates at that time. If there is otherwise any change in the cost incurred by us through your request for a variation to the Services or for any Services which fall outside the scope of the Proposal, we may vary our price to take account of any such change.
2.4 Unless otherwise agreed in writing, full payment for the Services must be made within 30 days from the date of the relevant Tax Invoice. We may send you a Tax Invoice on completion of the Services; on completion of a stage of the Services; or where the Services have stopped for more than 30 days for any reason.
2.5 Where agreed between the parties, or set out in a Proposal, we may invoice for Services in advance by issuing a Tax Invoice.
2.6 You agree to reimburse us for all reasonable costs, charges and expenses incurred by us in connection with the performance of the Services under these Terms, whether charged in advance or subsequently recovered from you.
3. Payment Default
3.1 If you do not pay any Fees in full by the due date, then we may, without prejudice to any of our other accrued or contingent rights:
- charge you interest on any sum due at the prevailing rate pursuant to the Penalty Interest Rates Act 1983 (Vic) plus 4% for the period from the due date until the date of payment in full;
- set off any other payments you have made against the amounts due;
- charge you for, and you must indemnify us from, all costs and expenses, including without limitation all legal and collection agent fees (on a full indemnity basis), incurred by us resulting from the default or in taking action to enforce compliance with these Terms;
- cease or suspend supply of the Services or any further services to you; and/or
- by written notice to you in accordance with clause 6.1, terminate any uncompleted agreement with you.
3.2 The options at clauses 3.1(c) and 3.1(d) may also be relied upon where you are bankrupt, in liquidation, or otherwise fall into one of the categories described in clause 6.2.
4.1 With the exception of any statutory rights available to you (including but not limited to the Competition and Consumer Act 2010 (Cth)), any term, condition or warranty which would otherwise be implied in these Terms are excluded.
4.2 We are not liable for any indirect or consequential losses or expenses suffered by you or any third party, however caused, including but not limited to loss of turnover, profits, business or goodwill or any liability to any other party.
4.3 You acknowledge that:
- you have the sole responsibility of satisfying yourself that the Services are suitable for your use;
- Nothing in these Terms is to be interpreted as excluding, restricting, or modifying or having the effect of excluding, restricting or modifying the application of any State or Federal legislation applicable to the supply of the Services which cannot be excluded, restricted or modified; and
- Our liability to you for any loss arising as a result of the non-performance or breach of these Terms by us will be capped at the amount paid or payable by you under these Terms in the three month period prior to the date on which the liability accrued.
5. Intellectual Property
5.1 You agree to supply to us, and grant us a licence to use, all information and content reasonably required by us for the delivery of the Services, and you warrant to us that our use of such information and content will not breach the rights of any third party, including in relation to its Intellectual Property.
6.1 Either party may terminate these Terms by providing at least 30 days’ written notice to the other party.
6.2 Notwithstanding clause 6.1, we may terminate the Terms immediately without notice where you:
- are a natural person and become bankrupt or enter into any scheme of arrangement or any assignment or composition with or for the benefit of your creditors generally; or
- are a corporation and enter into any scheme of arrangement or any assignment or composition with or for the benefit of your creditors or any class of creditors generally, or have a liquidator, administrator, receiver or manager or similar functionary appointed in respect of your assets, or any action is taken for, or with the view to, the liquidation (including provisional liquidation), winding up or dissolution without winding up of your corporation.
6.3 Following expiry or termination of these Terms for any reason:
- you must immediately pay us for any Services completed up to the date of termination; and
- clauses 1.6, 3, 4, 5 and 7 and any other clauses that make provision for the continued operation of these Terms survive and remain in force.
6.4 If we are unable to provide the Services, then we may cancel your order for such Services (even if it has been accepted by us) by written notice to you.
7.1 Except as contemplated by these Terms and to the extent required for the delivery of the Services, each party must:
- keep confidential the Confidential Information of the other party and must not disclose such information to any other party without the prior written consent; and
- not copy or reproduce in any way the Confidential Information.
7.2 You are responsible for and liable to us in respect of the actions or omissions of your employees, agents, contractors and consultants in relation to the disclosure of Confidential Information.
8. Dispute Resolution
8.1 In the event of a dispute between the parties, the parties agree in good faith to use all reasonable endeavours to settle the dispute. If the parties are unable to settle the dispute in good faith, then the dispute will be referred to mediation as follows:
- the mediator will be a mediator agreed between the parties and, failing agreement within 14 days of request to do so, will be nominated by the president for the time being of the Law Society of Victoria;
- the parties will be jointly responsible for the fees of the mediation and each party must pay its own costs in respect of it;
- the parties may be legally represented; and
- the place of mediation will be in Melbourne, Australia but the parties may agree to hold the mediation virtually.
8.2 Notwithstanding the above, a party is not prevented from making an application to a court for an interlocutory injunction.
9.1 You warrant to us that all information and materials you provide to us complies with all relevant privacy laws, including the Privacy Act 1988 (Cth).
10. Personal Property Securities Register
10.1 You agree the agreement governed by these Terms constitutes a security agreement and creates a security interest in favour of us in your present and after acquired property, as security for the obligations to pay invoices under these Terms.
10.2 You acknowledge you have granted a security interest under the PPSA and we may register this security interest on the Personal Property Securities Register over your General Property – All Present and After Acquired Property (as defined in the PPSA).
11.1 Force Majeure. Where we are unable, wholly or in part, by reason of a Force Majeure Event, to carry out any obligation under the Terms, the requirement to perform that obligation is suspended as long as the Force Majeure Event continues.
11.2 Relationship. Nothing contained or implied in these Terms constitutes a party the partner, agent or legal representative of the other party for any purpose, or creates any partnership, employment, agency or trust. Neither party has the authority to bind the other party in any way.
11.3 No waiver. Failure by us to enforce any of the Terms should not be construed as a waiver of any of our rights here under or a waiver of a continuing breach.
11.4 Entire agreement. The Terms constitute the entire agreement between us concerning any orders placed with us for Services you purchase from us.
11.5 Governing law. The Terms are governed by the laws of Victoria, Australia. You agree to submit to the exclusive jurisdiction of the courts of that jurisdiction.
In the Terms:
Confidential Information means all confidential information (however recorded or preserved) of a party that is obtained (whether in writing, orally or by any other means and whether directly or indirectly) by another party before, on or after the date of agreement to these Terms, including:
- the existence of these Terms;
- any information that would be regarded as confidential by a reasonable person relating to the business, affairs, customers, clients, suppliers, proposals, market opportunities, technologies, products, business and product development plans, financial information, services, pricing, capabilities, capacities, operations, processes, product information or Intellectual Property of the first-mentioned party; and
- any information developed by the parties in the course of carrying out their obligations under these Terms,
and includes any compilation of otherwise public information in a form not publicly known.
Fees mean the fees we charge for the Services.
Force Majeure Event means an act of God, flood, earthquake, storm, cyclone, hurricane, lightning, fire, explosion, pandemic, epidemic, war, terrorism embargo, riot or civil disturbance, strike or other labour dispute, sabotage, expropriation, confiscation or requisitioning of facilities, orders or temporary or permanent injunctions of any duly constituted court.
GST has the meaning given to it in A New Tax System (Goods and Services Tax) Act 1999 (Cth) and its associated regulations, as amended.
Intellectual Property means any and all intellectual and industrial property rights anywhere in the world including but not limited to rights in respect of or in connection with trademarks, service marks, patents, designs, trade secrets, know-how, copyright and analogous rights, and any associated goodwill, now or in the future, including any modifications or derivatives, and any right to register such rights.
Personal Property Securities Register has the meaning given to it in the PPSA.
PPSA means Personal Property Securities Act 1999 (Cth) and its associated regulations, as amended.
Proposal means a document provided by us and accepted by you which describes the Services.
Rates means the standard rates and fees we charge for Services on a time and materials basis, contained in the Proposal or otherwise provided to you, as updated from time to time.
Services means the services provided by us to you as outlined in the Proposal.
Tax Invoice has the meaning given to it in A New Tax System (Goods and Services Tax) Act 1999 (Cth) and its associated regulations, as amended.
Terms means these Terms and Conditions, as amended from time to time, and includes any Proposal.
We or Us or Our means Scooter Marketing Pty Ltd (ACN 660 356 801).
You or Your means you as the buyer of the Services from us pursuant to these Terms.