1 Establishment of agreement & appointment
1.1 Establishment of agreement
Thank you for choosing us as your consultant to provide the Services.
The terms and conditions that are set out below are the conditions under which we will provide the Services to you.
1.2 Acceptance of terms and conditions
Please read these Terms and Conditions, as well as any associated documents, carefully. By responding to the initial service email or attending to payment of any upfront Service Fee, you are agreeing to be bound by these terms and conditions.
1.3 Variation of terms and conditions
We may vary these terms and conditions at any time either by:
(1) providing you with thirty (30) says notice by way of email of any such variation; or
(2) including a notification on our website that our terms and conditions have been varied.
Upon commencement of the Services:
(1) you appoint us as your consultant to provide the Services; and
(2) we accept our appointment as a consultant and agree to provide the Services to you, on the terms set out in this agreement.
1.5 Term of appointment
The appointment referred to in clause 1.4 will continue until this agreement ends.
2.1 Schedule of Fees
(1) We will provide or make available to you, prior to or contemporaneously with your acceptance of these Terms and Conditions, a schedule of fees detailing the fees we will charge for the provision of the Services (Schedule of Fees).
(2) The Schedule of Fees will be deemed to be incorporated into this agreement and will form the basis of the fees which are payable by you to us (Service Fees).
(3) We may vary the Schedule of Fees from time to time (acting reasonably) by providing you with written notice (either by email or via our website) to that effect and any such variation will come into effect seven (7) days after that notice is provided.
(4) Any quote already provided to you will be varied in accordance with any change made to the Schedule of Fees pursuant to paragraph (3).
2.2 Terms of payment
(1) If we ask you for a deposit before we begin performing the Services then we may, at our discretion, not begin performing the Services until that deposit is paid.
(2) We will provide you with a tax invoice for the provision of the Services from time to time.
(3) You must pay us within:
(a) the time stipulated on the invoice provided to you by us; or
(b) if there is no such date on the invoice, fourteen (14) days of the date of the invoice.
(4) Interest will be payable on any overdue amount at the rate applicable under the then current interest rate:
(a) charged by the Commonwealth Bank of Australia from time to time for overdraft facilities for balances equal to the amount that is overdue; and
(b) from the due date for payment until the overdue amount is paid by you.
2.3 Suspension of the Services
(1) you fail to comply with any term of this agreement or any reasonable direction given by us concerning the provision of the Services; or
(2) we become aware of any Claim relating to any data provided to us by you, then
(1) from time to time without notice suspend the provision of the Services: and/or
(2) not provide you with the Deliverables until such time as the relevant matter is rectified by you.
If your Service Requirement includes the provision of hosting services then this clause 3 applies to those Services along with all other terms and conditions of this agreement.
3.1 Hosting Services
We will either:
(1) Engage a 3rd party supplier to supply to us on your behalf the hosting services required of which we will:
(a) monitor the servers used; and
(b) from time to time, may grant you access to files hosted on these servers. We reserve the right to deny any requests and any granted requests will automatically null and void any warranties in relation to the Services, or
(2) maintain and operate the hardware used to host the website including monitoring the servers used of which we will:
(a) provide an internet connection linking your website to the Internet; and
(b) from time to time, may grant you access to files hosted on these servers. We reserve the right to deny any requests and any granted requests will automatically null and void any warranties in relation to the Services.
3.2 Your responsibility
(1) You acknowledge that you are solely responsible for undertaking measures to:
(1) prevent any loss or damage to your website or server content;
(2) maintain independent archival and backup copies of your website or server content; and
(3) ensure the security, confidentiality and integrity of all your website or server content transmitted through or stored on our servers.
(2) You acknowledge that on occasion due to hacking, maintenance, faults and user error; that the Services, Deliverables, website or server content may be unavailable (Outage) either temporarily or indefinitely.
(1) Maintenance of your hosting services will be undertaken as required and at either ours or the 3rd party suppliers’ discretion.
(2) We will endeavour to ensure that any scheduled maintenance is performed outside of normal business hours, however under some circumstances, maintenance may need to occur during business hours of which your website may be inaccessible by you and the public for a period of time.
(3) You acknowledge and agree that in the course of us undertaking maintenance works, it may be necessary for us to modify, alter or remove some content of the website either permanently or temporarily.
(4) General maintenance and updates to your website including updates on request by you will be scheduled as required and at our discretion. Unless requested otherwise by you in writing, maintenance and updates will occur during normal business hours of which your website may be inaccessible by you and the public for a period of time.
(5) You acknowledge and agree that in the course of us undertaking website maintenance works and website updates, it may be necessary for us to modify, alter or remove some content of the website either permanently or temporarily.
4 Warranties, acknowledgements and indemnities
4.1 Our warranties
(1) We do not warrant that the Services will meet your requirements, other than as expressly set out in this agreement.
(2) We will try and minimise any Outage on a case by case basis and you may be charged by us for our Services to do so having regard for the cause or nature of the Outage (acting reasonably). We do not warrant that we can rectify an Outage either in part or at all.
(3)We do not warrant that any backup of the website or server content can be used for restoration
(4) Where we either use, recommend that you use or resell 3rd party services to you as part of the Services:
(a) we do not warrant that the 3rd party services will meet your requirements;
(b) we are not responsible for the performance and continuation of these services; and
(c) you agree to use these services at your own risk and comply with the terms and conditions and usage policies of those service providers.
4.2 Your warranties
You warrant that you will not do, or allow to be done any of the following acts in respect of your use of the Deliverables:
(1) use the Deliverables for any immoral or illegal purpose; or
(2) reverse engineer, modify, decompile, disassemble, attempt to discover the source code of, or create derivative works based on any aspect of the Deliverables, nor permit anyone else to do so without the written approval of Getmilk.
You indemnify us against any Claim:
(1) relating to the proper performance by us of our obligations under this agreement;
(2) resulting from your fraudulent, negligent or unlawful behaviour;
(3) relating to the data and other materials provided to us by you;
(4) relating to any Outage;
(5) resulting from a breach of the terms of this agreement by you;
(6) resulting from a breach of any 3rd party service provider’s terms and conditions or policies by you;
(7) resulting from the use of the IP by you; or
(8) resulting from your use or misuse of the Deliverables.
5 Intellectual Property and Confidential Information
From the date of this agreement, you grant us a non-exclusive, irrevocable, perpetual, royalty and fee free, unlimited licence (including the right to sub-license) to adapt, modify, communicate, exploit (in any manner) and use:
(1) any or part of the Deliverables in connection with the Services in the development, marketing, promotion or any of our other business activities which may include distributing these same deliverables to 3rd parties; and
(2) any improvements to your IP made by us in connection with the Services in development, marketing, promotion or any of our other business activities which may include distributing these same deliverable to 3rd parties.
5.2 Ownership of the Getmilk IP
Title to the Getmilk IP and any improvements to it, whether made by you or us, remains vested at all times in us.
5.3 Licence to use Getmilk IP
From the date of this agreement and in consideration of the Services Fee, we grant you a non-exclusive fee free licence to use the Getmilk IP. Ongoing fees associated with this licence will be described in the Services Fee where applicable.
5.4 Restricted conduct
You agree that you must not (except as expressly authorised by the terms of this agreement):
(1) disclose the Getmilk IP (or any part of it) to any person (whether governmental, corporate or individual) except in accordance with the terms of this agreement; and
(2) launch or attempt to launch a product or arrangement that is the same or similar to the Getmilk IP; and
(3) do any act or thing that:
(a) is inconsistent with our proprietary interest in the Getmilk IP; or
(b) which leads, or may lead, to:
(i) a reduction in the value of the Getmilk IP; or
(ii) the Getmilk IP being brought into disrepute or otherwise adversely affected; or
(iii) hold itself out as being entitled to any proprietary interest in the Getmilk IP.
You are absolutely liable to us for any loss or damage (of whatever nature) arising from disclosure of the Getmilk IP where such disclosure was made in breach of clause 5.4.
5.6 Assistance in the event of infringement of rights to IP
(1) If you become aware of a person using the Getmilk IP without our apparent approval then you must immediately notify us.
(2) You must, if requested by us and at our expense, do all such acts necessary to assist us in protecting its interest in the Getmilk IP.
A party must not disclose Confidential Information disclosed to it by the other party except:
(1) with the prior written consent of the disclosing party; or
(2) in accordance with the terms of this agreement.
5.8 Exceptions to non-disclosure
(1) A party may disclose Confidential Information that has been disclosed to it:
(a) where such disclosure is made to those of its employees, advisers, related bodies corporate and shareholders who have a need to know (and only to the extent each has a need to know) and are aware and agree that the information that is to be disclosed must be kept confidential; or
(b) which, at the time of disclosure, is within the public domain; or
(c) where required by law or any order of any court, tribunal, authority or regulatory body.
(2) You acknowledge and agree that Getmilk will not be in breach of this agreement if it uses information created by or provided to it during the provision of the Services (including images contained in the Deliverables) on its website for marketing and other purposes associated with its business. Further to this you consent to Getmilk using such information in that manner.
This agreement terminates:
(1) upon either party giving the other party thirty (30) days written notice;
(2) where either party becomes subject to an Insolvency Event; or
(3) where a party is in breach of their obligations under this agreement and fails to rectify that breach within seven (7) days of receiving notice from the other party to do so, then the non-defaulting party may terminate this agreement immediately by giving notice in writing to the party in default.
7 Special Conditions
If there are any “Special Conditions” stated in the Cover Page then the terms of those Special Conditions prevail to the extent of any inconsistency with the terms contained in these Terms and Conditions.
Claim against any person any allegation, action, demand, cause of action, suit, proceeding, judgement, debt, damage, loss, cost, expense or liability howsoever arising and whether present or future, fixed or unascertained, actual or contingent whether at law, in equity, under statute or otherwise.
Confidential Information means:
(a) this agreement; and
(b) financial information: information regarding costs, profits, markets, sales and other financial information; and
(c) business information: information regarding business relationships and strategies, development plans, marketing, product concepts, trade secrets and other business information the business of the disclosing party and the disclosing party’s clients or third party suppliers; and
(d) personal information: any personal information relating to the officers (as defined in s9 of the Corporations Act 2001), partners, employees, agents, contractors or clients of the disclosing party; and
(e) information obtained through performance: all information which becomes known to a party as a consequence of it performing the obligations under this agreement including (without limitation) all records, documents, accounts, plans, specifications, price lists, customer lists, correspondence, photos and papers of every description relating to the disclosing party; and
(f) technical information: information regarding designs, development processes and tools, hardware specifications, know-how, production, research, software specifications, data bases and software developed or used by a party whether as owner or under licence from any person and other technical information; and
(g) disclosed information: any other information disclosed by a disclosing party that:
(h) is identified as being confidential; or
(i) would be apparent to a reasonable person that such information was disclosed in confidence by the disclosing party.
means any material that we agree to provide you as part of the Services which is provided in a format that is not able to be altered electronically.
means all IP created or used by us in the performance of the Services other than the IP to which clause 5.1 applies.
means all intellectual property rights conferred by law including (without limitation):
(1) patents, designs, formulas, plans, specifications or other documents created in connection with the business of the relevant party; and
(2) copyright, trademark, trade business, company names, business names, websites, URLs or email addresses; and
(3) all other proprietary rights and all other intellectual property defined in Article 2 of the Convention establishing the World Intellectual Property Organisation (July 1967).
means the hours between 10pm and 5am (local standard time).
means the services and/or products we agree to provide to you from time to time.
means the Service Package described in the Cover page.
means unauthorised intrusion into a computer or a network.