TERMS & CONDITIONS
TYE BATE (ABN 99 801 962 008)
- DEFINITIONS AND INTERPRETATION
In these Terms and Conditions:
Australian Consumer Law means Schedule 2 of the Competition and Consumer Act 2010 and any corresponding provisions of State Fair Trading legislation as amended.
Client means any person or company (or user and/or agent of the person or company) who has entered into an agreement with Us for the supply of Services whether via Our website or otherwise.
Day means a day other than a weekend or public holiday in the place where the Services are delivered or as otherwise agreed between Us and the Client.
GST means the goods and services tax as imposed by the GST Law.
GST Amount means any Payment (or the relevant part of that Payment) multiplied by the appropriate rate of GST.
GST Law means A New Tax System (Goods and Service Tax) Act 1999 as amended from time to time or other relevant legislation and regulations.
Services means any goods or services detailed under the Packages Price List or Add-Ons List found on our website or custom goods and services discussed with Us in-person (consulting), email and/or other methods.
Tax Invoice has the meaning given to that term by the GST Law.
We or Us or Our means Tye Bate (ABN 99 801 962 008).
2.1 These Terms and Conditions, will constitute the entire agreement between Us and the Client in respect of any professional services, including subsequent services and charges by Us to the Client. No further, additional or modified terms or conditions will be binding unless in writing and signed by Us and the Client.
2.2 Any direction (including payment of a deposit amount) or purchase order placed by the Client, either verbally or written to procure services from Us will be deemed as acceptance by the Client of these Terms and Conditions.
3.1 We shall provide the Services with such creative control, skill, care and diligence as is ordinarily exercised by other providers in similar circumstances at the time the Services are provided.
3.2 The Client shall obtain (and provide to Us at its own cost) all necessary releases, permits, licenses, right[s] of entry, site Information and/or location of utilities and/or any on-site hazards concerning the provision of the Services.
3.3 Where field or on-site work activities are undertaken as part of the Services, the Client will be liable to make good any disturbance[s] cause by Us in the normal course of carrying out the Services.
3.4 We shall be responsible only for Our activities and nothing shall imply that We have any responsibility for site safety which is the responsibility of the Client or its agents or contractors. The Client shall provide in advance any environmental, health, or safety policies or procedures it requires Us to abide by during the provision of the Services. If no policies or procedures are provided, We shall abide by Our own policies and procedures in the provision of the Services. If in Our reasonable opinion it is unsafe to continue, We may suspend the Services without penalty until the unsafe condition is rectified. At no time shall WE be deemed to be in control of any site unless by prior written agreement in connection with the Services.
3.5 If We consider it appropriate to do so, We may, without the Client’s prior written approval, engage another consultant/agent to assist Us in provision of the Services.
3.6 The Client agrees that while providing the Services it will not unreasonably object to Us (Our employees or agents) wearing branded clothing.
3.7 The Client agrees and acknowledges that there is the possibility for equipment failure and/or for data files or memory cards to become corrupted. If this occurs and We are unable to provide the Services We will refund to the Client the amount paid to Us by the Client, for the Services We are unable to provide, less any expenses incurred by Us in hiring equipment in carrying out the Services.
4.1 The Client shall pay our Tax Invoice issued by Us to the Client without any deduction whether by way of claimed credit, setoff or counterclaim and the Client will not be entitled to withhold payment of any Payment required to be made by way of set off, credit or counterclaim.
4.2 Payment of a 50% deposit of the value of the Services is to be paid to Us before the commencement of the Services. The remaining balance is payable on delivery of the Services and/or within 14 (fourteen) days from the date of Our Tax Invoice, issued to the Client, or otherwise agreed in writing between Us and the Client.
4.3 If the Client fails to make Payment strictly in accordance with these Terms and Conditions:
(a) all amounts owing by the Client to Us shall immediately become due and payable by the Client to Us;
(b) We may, in Our absolute discretion, and without notice to the Client, suspend any further deliveries to the Client and refuse to supply any further goods and services to the Client, and We shall not be liable to the Client for any loss or damage the Client may sustain because of such refusal to supply or suspension of delivery of the Services;
(c) without limiting Our rights to claim statutory interest, interest will be charged and become payable on any outstanding amounts at the rate of 4 (four) % per annum above the Australian Cash Rate set by the Reserve Bank of Australia, calculated daily until the Client pays in full; and
(d) the Client will be liable to Us and must reimburse Us for all the costs incurred by Us in the collection of any moneys due and payable by the Client, including the fees of any mercantile agent or lawyer engaged by Us, with the legal costs of any lawyer engaged by Us to include all legal costs and disbursements calculated on an indemnity basis.
5.1 Unless otherwise stated, GST is expressly included in the price payable for any sale or supply made under or in connection with these terms and conditions.
5.2 The Client must pay GST (or any other tax duty, levy, tariff or charge) equal to the rate at which GST is imposed by the GST Law in respect of the supply.
5.3 We will provide the Client with a Tax Invoice.
6.1 We reserve the right to suspend or discontinue the supply of services to the Client on reasonable grounds without being obliged to give any reason for Our action, including, but not limited to when:
- The Client has breached these Terms and Conditions; OR
- We determine, in Our discretion, that credit should no longer be extended to the Client;
and We shall not be liable to the Client for any loss or damage the Client may sustain because of such suspension or discontinuance refusal to supply or suspension of delivery.
7.1 The Client consents to Our use of the Services and/or the Client’s intellectual property and logos in Our internal and external marketing materials, including resumes, proposals, and marketing materials. The Client shall not use Our name, trademark[s] or other intellectual property and/or trade names, in part or in whole, without Our prior written approval.
8.1 Neither We nor the Client shall disclose to third parties or use for any purpose (other than providing or benefiting from the Services) any information provided by the other unless required by law or the information is already available to the public, or the other consents to the disclosure.
9.1 Risk in the Services will pass to the Client upon delivery of the Services to the Client.
- OWNERSHIP AND USE OF WORK PRODUCT
10.1 Intellectual property and copyright in the Services provided to the Client by Us shall remain the property of Us.
10.2 We grant a non-exclusive, non-transferable license to the Client to use the Services provided for the purposes described by the Client.
10.3 The Client shall not use or make copies of such work without Our prior written consent.
- EXCLUSION OF LIABILITY / NO WARRANTIES OR REPRESENTATIONS
11.1 To the extent permitted by law, all terms, conditions and warranties whether implied by Statute including the Australian Consumer Law or the common law for the provision of the Services by Us to the Client are excluded, and to the extent We are entitled to do so, Our liability under any statute including the Australian Consumer Law is limited to the cost of the replacement of the Services and We will not be liable for any consequential loss or damage or any other direct or indirect loss or damage suffered by the Client.
11.2 The Client acknowledges that except as set out in these Terms and Conditions, it relies on its own inquiries in respect of the Services and does not rely on any warranty, inducement or representation made by Us or any person on behalf of Us.
- NO WAIVER
12.1 Failure by Us to enforce these Terms and Conditions shall not be construed as a waiver of any of Our rights under these Terms and Conditions or in any way restrict or prejudice Our entitlement to rely on Our rights under these Terms and Conditions.
13.1 Any notice required to be given by Us to the Client or by the Client to Us is to be in writing and delivered (to the last known address) by post or email to the address or email address of Us or the Client.
14.1 If any provision of these Terms or Conditions is or becomes invalid or unenforceable in any respect, the validity and enforceability of the remaining provisions of these Terms and Conditions will not, in any way, be affected and these terms and Conditions should be read as if the provision that is or becomes invalid or unenforceable has been severed.
- FORCE MAJURE
15.1 We will not be liable for any breach of agreement that is caused by anything beyond Our reasonable control and which did not exist at the time the parties contracted for the supply of the Services and which was not reasonably foreseeable by Us at the time the parties contracted for the supply of the Services, which events may include, but not be limited to strikes, government intervention, work stoppages, fire, transport breakdowns or power outages, weather event[s] and act of God.
16.1 We or the Client may terminate Our/its obligations under these terms and conditions in the event of a substantial breach by the other party of its obligations and the breach has not been remedied within 30 days of a written notice requiring the breach to be remedied, or without cause upon giving the other party 30 days’ written notice of its intention to do so. We may suspend or terminate Our obligations under these terms and conditions in the event of monies payable to Us for the Services remain outstanding for more than 30 days.
17.1 The Client agrees to indemnify and hold harmless Us and/or Our employees and/or Our agents against any losses, claims, damages, liabilities, penalties, actions, proceedings or judgments to which We may become subject and which losses, claims, damages, liabilities, penalties, actions, proceedings or judgments arise out of, or relate to the Services, these terms and conditions or the Client’s use of the Service. The Client will reimburse Us and/or Our employees and/or Our agents for all legal and other expenses, including reasonable Solicitors’ fees incurred by Us and/or Our employees and/or Our agents in connection with investigating, defending or settling any losses, claims, damages, liabilities, penalties, actions, proceedings or judgments whether or not in connection with pending or threatened litigation in which We and/or Our employees and/or Our agents is a party.
18.1 Any dispute between Us and the Client shall be notified in writing by the aggrieved party to the other within 7 days of the onset of the dispute. Within 7 days of notification of the dispute, the parties shall meet in good faith, without legal representation, in an attempt to resolve the dispute. If the dispute is not resolved the parties agree that the dispute shall then be subject to final expert determination. The expert shall be chosen by agreement between the parties (the costs of the expert to be shared equally between the parties). The parties agree to continue to perform all other obligations under this agreement, notwithstanding any dispute.
- GOVERNING LAW
19.1 These Terms and Conditions are governed by the laws of New South Wales.
19.2 Proceedings in respect of any dispute may be brought in any court of competent jurisdiction in New South Wales and the parties submit to the non-exclusive jurisdiction of the courts of New South Wales to determine any dispute.