Online Medical Pty Ltd ACN 141 416 220
Dr Andrew Renaut
Brisbane Private Hospital
259 Wickham Terrace
Spring Hill Queensland 4000
Telephone: +61 7 3831 9471
The person or entity named in the Proposal.
Each a Party and together referred to as the Parties.
The Client has asked the Developer for a Proposal to develop the Website and provide hosting services.
The Developer agrees to develop the Website for the Client and the Client agrees to accept the Website which the Developer develops according to the Proposal.
The Client agrees to work with the Developer in good faith to enable the Developer to complete the work in a timely and efficient manner.
|Annexure name||Annexure Number|
|Hosting Terms of Service||2|
|Hosting Service Level Agreement||3|
|Hosting Removal of Customer Content Policy||4|
Schedule 1: Items Schedule
Item 1. Hourly Rates
As provided on the Developer’s website.
Item 2. Developers website
Item 3. Authorised Officer
Means the Client’s contact person as stated in the Proposal.
1. Definitions and interpretation
In this Agreement and any Schedule(s) the following terms have the following meanings unless the context requires otherwise:
Agreement means the terms and conditions contained in this document, the Proposal and any Annexures.
Approval means a communication sent by the Client to the Developer as part of the Developer providing the Services to the Client.
Annexures means the additional documents listed in the Details section of this Agreement, which forms part of the contract between the parties.
Anticipated Delivery Date means the date that the Website is anticipated to be completed by the Developer as communicated in the Proposal or in other communications sent by the Developer.
Authorised Officer means the person authorised by the Client as in the Proposal to provide instructions and directions to the Developer including amendments to the Scope of Work and any Approval by the Client.
Business Day means:
- for receiving a notice under clause 13, a day that is not a Saturday, Sunday, public holiday or bank holiday in the place where the notice is received; and
- for all other purposes, a day that is not a Saturday, Sunday, bank holiday or public holiday in in Queensland, Australia.
Business Hours means from 9.00am to 5.00pm on a Business Day.
Consequential Loss means:
- any loss of profits, loss of revenue, loss of opportunity, loss of anticipated savings, pure economic loss and increased operating costs; and
- any consequential or indirect loss, suffered or incurred by any person whether arising in contract or tort (including negligence) or under any statute.
Client means a Party to this Agreement who has received a Proposal and agrees to be bound by the terms and conditions contained in these Terms of Business and any Schedules.
Content means text, data, speech, music or other sounds, visual images (animated or otherwise), video, or document files in any form used on the Website.
Content Management System (CMS) means the system which the Developer will use to develop the Website for the Client.
Design Mockups mean an indicative only, draft visual representation of a Webpage or Webpage Template. Design Mockups are used as a visualisation tool that may indicate proposed mandatory inclusions, page layout, functionality and look and feel of the Website.
Design means a distinctive stylistic treatment which includes a number of elements such as typographic treatment, application of colour and layout – all created to meet the brief provided by the Client. A stylistic treatment is considered a separate design if it looks substantially different from other Designs that are provided. The term Design applies to websites, or elements that form part of the website such as custom banner designs or logo designs.
Design Revision means a change to a Design which is relatively minor in nature and are referred to as “rounds” of changes – for example: Round 1, Round 2, Round 3. A Design Revision is a response to a set of complete and clearly specified instructions from the Client to change a Design. A change is considered a Design Revision if the requirements are relatively minor in nature and takes no more than 2 hours.
Developer’s Website means the Website that the Client may be able to access Documentation and other information from as specified at Item 3 of Schedule 1.
Documentation means any user operating manual, explanatory notes or memoranda that may or may not be supplied with the Content Management System provided by the Developer as updated from time to time on its Website.
Fee means that amount of money the Client is to pay the Developer to develop the Website specified in the Proposal.
Force Majeure means an act of God, fire, lightning, explosions, flood or other natural disaster, subsidence, act of terrorism, insurrection, civil disorder or military operations, power or gas shortage, government or quasi-government restraint, expropriation, prohibition, intervention, direction or embargo, inability or delay in obtaining governmental or quasi-governmental approvals, consents, permits, licences or authorities, strikes, lock-outs or other industrial disputes of any kind and any other cause, whether similar or not to the foregoing, outside of the affected Party’s control.
Hosting Removal of Customer Content Policy means a separate Annexure for circumstances in which Online Medical Hosting may remove content.
Hosting Service Level Agreement (HSLA) means a separate Annexure for maintenance and support of the Website and Email Hosting services.
Hosting Terms of Service means a separate Annexure for the supply of Website and Email Hosting services.
Hourly Rates mean the amount of money that the Developer charges per hour to provide Services and Support as provided on its website from time to time.
Intellectual Property means all industrial and intellectual property rights including, without limitation, patents, copyrights, right to extract information from databases, design rights, trade secrets, rights of confidence, and all forms of protection of a similar nature or having similar effect to any of them which may subsist anywhere in the world (whether or not any of them are registered and including applications and the right to make applications for registration of any of them).
Moral Rights means any moral Rights including the Rights described in Article 6 is of the Berne Convention for Protection of Literary and Artistic Works 1986 (as amended and revised from time to time), being "droit moral" or other analogous Rights arising under any statute (including the Copyright Act 1968 (Cth) or any other law of the Commonwealth of Australia), that exist or that may come to exist, anywhere in the world.
Personnel in relation to a Party means it’s employees, officers, and agents as the case and context requires.
Program means the Content Management System (CMS) used by the Developer to develop the Website, excluding the Online Medical Module(s).
Proposal means a document provided to the Client by the Developer that includes a summary of the work to be completed which the terms and conditions contained in this Agreement apply to.
Services means any work necessary to complete the Website including graphic design, copywriting, logo development, photography, which the Client has instructed the Developer to complete as provided in a Proposal.
Proposal Exclusions mean the list of specific matters which are not included as part of this Agreement as specified in the Annexure with this name.
Policy means any document prepared by the Developer and communicated to the Client to assist the Client to understand and comply with the processes utilised by the Developer.
Sitemap means a list of all Webpages to be included in the Website that is to be built for the Client.
Tax means all taxes, charges, fees and other imposts payable in connection with this Agreement.
Terms of Business means the terms and conditions contained in the Proposal provided to the Client and this Agreement and any Schedules.
Training means instruction provided by the Developer to the Client’s employees, officers or agents, which is designed to enable the Client to perform basic Content editing on the Client’s Website.
Webpage means a page on the Website, created from approved content supplied by the Client to the Developer.
Website means the Client’s Website which uses the Program hosted on the Developer’s servers as described on the Proposal.
Works means the source, algorithms and system logic relating to the Online Medical Module(s) that is subject to this Agreement which copyright subsists as a literary work and any illustrations, graphics or photographs (taken by the Developer or its agents) that have been created by the Developer for the Client as specified in the Proposal to build the Website including all representations, variations, modifications and prior versions of the Works.
Upgrades means any modifications, new or revised versions of the code that the website or the hosting services requires to operate more efficiently or effectively as determined by Developer at its sole discretion.
In this Agreement, except where the context otherwise requires:
- the singular includes the plural and vice versa, and a gender includes other genders;
- another grammatical form of a defined word or expression has a corresponding meaning;
- a reference to a clause, paragraph, schedule or annexure is to a clause or paragraph of, or schedule or annexure to, this Agreement, and a reference to this Agreement includes any schedule or annexure;
- a reference to a document or instrument includes the document or instrument as novated, altered, supplemented or replaced from time to time;
- a reference to A$, $A, dollar or $ is to the currency of the Australia;
- a reference to time is to the time specified in Queensland, Australia.
- a reference to a Party is to a Party to this Agreement, and a reference to a Party to a document includes the Party's executors, administrators, successors and permitted assigns and substitutes;
- a reference to a person includes a natural person, partnership, body corporate, association, governmental or local authority or agency or other entity;
- a reference to a statute, ordinance, code or other law includes regulations and other instruments under it and consolidations, amendments, re enactments or replacements of any of them;
- the meaning of general words is not limited by specific examples introduced by including, for example or similar expressions;
- any agreement, representation, warranty or indemnity by two or more Parties (including where two or more persons are included in the same defined term) binds them jointly and severally;
- any agreement, representation, warranty or indemnity in favour of two or more Parties (including where two or more persons are included in the same defined term) is for the benefit of them jointly and severally;
- a rule of construction does not apply to the disadvantage of a Party because the Party was responsible for the preparation of this Agreement or any part of it;
- if a day on or by which an obligation must be performed or an event must occur is not a Business Day, the obligation must be performed or the event must occur on or by the next Business Day; and
- headings are for ease of reference only and do not affect interpretation.
2. Development of the Website
The Developer agrees to develop the Website for the Client according to the terms and conditions contained in this Agreement, it’s Annexures and the Proposal
2.1 Client’s obligations
- The Client:
- agrees to provide clear and accurate instructions to the Developer regarding any changes to the Scope of Work as particularised in the Proposal;
- agrees that if the Scope of Work changes, that further time will have to be spent and as such the Client will incur further fees based on the Developers Hourly Rates;
- agrees to work with the Developer to use its best endeavours to provide all things necessary to the Developer to complete the Website within three months (90) business days from the date that the Proposal is accepted. If the client fails to respond to requests for approval, or to provide all necessary material within this period, the Developer reserves the right to activate the Penalty Clause of this contract.
- agrees that its Authorised Officer will be available for Training in use of the CMS in the manner requested by the Developer.
- agrees to comply with the Developer’s process for completing Designs and Design Revisions as follows:
- Design process
The Developer will provide as part of the process for the Development of the Website either:
- One (1) Design, with two (2) Design Revisions; or
- Two (2) Designs, with one (1) design Revision per Design.
- The Client agrees to act reasonably and promptly in providing instructions for Design Revisions to the Developer and agrees that any further Design Revisions requested outside the above will be charged at the Developer’s Hourly Rates. The Client must communicate required changes or approval of designs, or Design Revisions within five (5) business days of receipt.
- The Client also agrees to abide by any Policy provided by the Developer to assist with the management of the work for the Client as notified from time to time.
2.2 Hourly Rates
- Where the Developer has not provided a Proposal or the Client has requested that the Developer provide Services which are not included in a Proposal, the Developers Hourly Rates apply.
- The Developer’s Hourly Rates apply to any work completed on an ad hoc basis for the Client after the Website has been delivered unless the Client has elected to enter into a Pre-Paid Maintenance Agreement (Security and Stability Updates) or purchased a Pre-Paid Service Agreement.
2.3 Website development Fees
The Developer will invoice the Client for work completed on the Website as provided in the Proposal, and in accordance with this clause 2.
2.4 Service fees
Any Services provided to the Client which are not included in the Proposal are charged at the Hourly Rates.
Invoices provided by the Developer must:
- clearly identify the services and the Proposal to which the invoice relates;
- identify the manner of calculating the amount payable by the Client under the invoice;
- be a valid tax invoice for GST purposes and comply with any other tax requirements; and
- include any other information that may reasonably be required by the Client from time to time.
2.6 Payment terms
- The Developer requires the Client to pay in three (3) instalments, by direct debit. Where this is not possible, and the Client has notified the Developer of this, the Developer will issue three (3) separate invoices.
- Under these circumstances the Client must pay the final invoice for the Website before the Website is put live by the Developer. All other invoices are payable within seven (7) business days of the date of the invoice.
The client must notify Developer of their choice between either of the two choices detailed below;
- Develop and Launch Incomplete Site, or;
- Project Suspension.
If the client has not communicated a choice within (3) business days of notification, the Developer will decide.
Develop and Launch Incomplete Site
- Any revised content or features will be considered a new project and quoted as such.
- Additional time will be required in order to reschedule development resources to implement any of these purposefully excluded content.
- If and when the client desires to implement any of these purposefully excluded content or features, extra costs will be incurred.
- The completed site must be approved by the client and all appropriate cooperation provided in order to to facilitate publishing of the completed website in a reasonable timeframe after completion. Failure to do so, will incur termination of this contract.
- The developer may at their discretion modify any previously agreed aspect of the website as required, or otherwise act to facilitate publishing of the website, without further interaction or approval by the client.
- This process purposefully excludes any incomplete, missing, or otherwise unapproved content or site features that were previously agreed.
- This Develop and Launch Incomplete Site option will commence immediately after client confirms their preference.
- The website project will be suspended for a period of 3 Months (90) business days, or until such time that you wish to reactivate within this period.
- The project will not recommence until client has provided the Developer with requested approvals and all necessary materials that were originally required.
- If the project is suspended for more than three months (90) business days from notification of suspension, the project will be terminated.
- This Project Suspension option will commence immediately after client confirms their preference.
- Reactivation of a Project after Suspension may incur a fee at the Developers discretion, calculated at 10% of the Project cost.
3. Acceptance testing
3.1 Developer must test before delivery
Before the Developer delivers the Website to the Client for Acceptance testing (knon as Client Review), the Developer must carry out its standard works tests to establish that the Website:
- is in working order;
- does not contain faults or errors; and
- complies with the Proposal.
Acceptance testing is intended to expedite the identification and repair of any problems related to execution of the agreed deliverables. Online Medical must implement fixes before publishing the website. Acceptance testing feedback from the client must be provided within 5 working days).
3.2 Cross-browser compatibility tests
- Prior to providing a testing environment to the Client, the Developer will undertake best efforts to test the Website for compatibility with Desktop browser’s including:
- Microsoft® Internet Explorer® version 9 and above;
- Recent versions of Safari;
- Recent versions of Google Chrome; and
- Recent versions of Mozilla® Firefox®.
- Prior to providing a testing environment to the Client, the Developer will undertake best efforts to test the Website for compatibility with Mobile (Smartphone) browser’s including:
- Recent versions of Safari (iOS Devices);
- Recent versions of Google Chrome (iOS Devices);
- Recent versions of Google Chrome (Android Devices);
- Recent versions of Mozilla® Firefox (Android Devices);
- The Developer will not be required to perform testing in Blackberry OS or Blackberry QNX, Opera Mini, Opera Mobile, Symbian or other mobile browsers.
4. Licence to use proprietary elements of the Program
4.1 Limited Licence
The Developer grants the Client a non-exclusive, non-transferable, limited Licence to use the Online Medical Module(s) on the terms and conditions contained in this Agreement.
4.2 Ownership of the Online Medical Modules
- The Client acknowledges that they do not acquire any Intellectual Property Rights, either express or implied in the Online Medical Module(s) beyond a right to use them according to the terms and conditions contained in this Agreement.
- The Client is entitled to receive security and stability patches if they are subscribed to the Pre-Paid Maintenance Agreement (Security and Stability Updates).
- The Developer reserves the right to charge a reasonable fee for further works required due to the implementation of security and stability patches.
- The Client is not entitled to receive any CMS upgrades or patches, unless (at the Developer's discretion) it is considered essential for the operation of its Website .
- The Developer may from time to time inform the Client of recommended version updates, patches, and bug-fixes released whilst the Developer hosts the Website.
- All upgrades will be installed by Developer to operate the Client’s Website.
- This does not include updates, patches and bug fixes which may be required to a Client’s Website which are outside of the Developer’s control because of browser upgrades (for example).
6. Specific prohibitions on use of the Program
6.1 Client Prohibitions
Client’s agree that they must not:
- use the Program for any purpose or in any manner other than allowed by this Agreement;
- use the Program in any way that could damage the reputation of the Developer or the goodwill or other rights enjoyed by Developer;
- Permit any third Party to obtain access to the Program;
- distribute or redistribute the Online Medical Module(s).
6.2 Consent to the provision of information to third parties
Client’s acknowledge that:
- their personal information may be provided to third parties in order for the Program to operate effectively.
- information about them may be sent between countries to other entities that Developer has commercial contracts with.
- any information provided to third party’s will be confidential and all reasonable efforts to keep the data confidential will be made by Developer.
7. Representations and warranties
7.1 Developer’s warranties
The Developer warrants that:
- the Website will be substantially free from physical defects in material and workmanship for 6 months after:
- completion; and
- the Client provides an Approval accepting the Website pursuant to clause 3;
except that no warranty is provided that the Website will work in all respects on any future versions of browsers which are released after completion.
- the Website complies with the Proposal; and
- to the best of its knowledge the Website does not contain any computer virus or other code that is harmful, destructive, disabling or which assists in or enables theft or alteration;
- the Client should not rely on the Anticipated Delivery Date as particularised at Item 9 of Schedule 1: unless agreed otherwise, as is it a guide only;
- that any images used in the Website are used according to the terms of the licence where they were obtained from;
- that the Website developed for the Client will utilise responsive website design techniques to provide an appropriate viewing experience on laptop, tablet and mobile devices.
7.2 Client’s warranties
The Client warrants that:
- it’s Authorised Officer will act reasonably and promptly in providing instructions to the Developer regarding their feedback on the Designs presented and Design Revisions.
- it will not unreasonably withhold any Approval requested by the Developer;
- should Approval be withheld after the Developer completes testing and the Website works according to the Proposal, then the Client is deemed to have provided Approval five (5) business days after being asked for it;
- it will provide all required Content for its Website within twenty (20) business days from the date that the Proposal is accepted;
- it will act reasonably in engaging third party content creators of Content such as public relations consultants and copywriters;
- it will notify the Developer as soon as it becomes aware that its Authorised Officer is unable to provide instructions to the Developer and agreed to replace that person within three (3) business days;
- it agrees to abide by any Policy which the Developer provides it with from time to time.
- that any Content provided to the Developer to be uploaded to the CMS by the Developer is owned by the Client, or they have a right to use the Content and does not infringe the Intellectual Property right of any third party;
Should any of the above Warranties be breached by the Client, then the Developer reserves its right to terminate this Agreement.
7.3 Mutual representations and warranties
Each Party represents and warrants that it has the requisite power and authority to enter into this Agreement and to complete its obligations contemplated herein.
The Client indemnifies the Developer and its personnel against any loss, claim, damage, expense, cost (including legal costs on a full indemnity basis), proceeding, liability or charge of any nature that the Client or its Personnel may sustain or incur as a result or as a consequence of:
- a breach of a term of this Agreement or of a warranty;
- a claim by a third Party that using the Website in compliance with this Agreement infringes that third Party's Intellectual Property Rights.
9. Limitation and exclusion of liability
9.1 Application of clause
Clause 9 does not exclude or modify any condition or warranty implied into this Agreement, or any liability imposed on Developer, by law (including the Competition and Consumer Act 2010 (Cth)) if to do so would contravene the law or make any part of this clause 9 void.
9.2 Implied conditions and warranties
Developer excludes any condition or warranty implied by law (including the Competition and Consumer Act 2011 (Cth)) or custom into this Agreement.
9.3 Consequential loss
The Developer excludes liability to the Client (whether arising in contract or tort (including negligence) or under any statute) for any Consequential Loss suffered by the Client in connection with this Agreement.
9.4 Limitation of liability
Developer limits its liability:
- for breach of a warranty under this Agreement, or for a breach of a condition or warranty it cannot lawfully exclude, for services, to resupplying the services or paying the cost of having those services resupplied; and
- from any operation or non-operation of the Website not covered by clauses 9.2 or 9.3 to the total Fee payable under this Agreement.
9.5 Proportionate liability
A Party's liability is reduced proportionally to the extent that any act or omission of the other Party or its Personnel caused or contributed to the other Party's loss.
10. Dispute resolution
10.1 No court proceedings unless procedure followed
A Party must not commence legal proceedings (except proceedings seeking interlocutory relief) unless it has complied with this clause 10.
10.2 Notice of Dispute
A Party claiming that a dispute, difference or question arising out of this Agreement, including a question as to whether certain services are in scope or not, has arisen (Dispute) must give the other Party notice of the details of the Dispute (Dispute Notice).
10.3 Negotiated resolution
When a Dispute Notice is given, each Party's chief executive officers (or their nominee) must meet or conduct a teleconference and first attempt to resolve the Dispute.
If the chief executive officers (or their nominee) cannot resolve the Dispute under clause 13.4 within twenty (20) business days (or longer period agreed between the Parties), the Parties must refer the Dispute for mediation by the Australian Commercial Dispute Centre Limited for resolution in accordance with the Conciliation Rules of the Australian Commercial Dispute Centre.
10.5 Court proceedings if procedure fails
If the Parties cannot resolve a Dispute in accordance with the escalation procedure in clauses 10.3 and 10.4, each Party may commence court proceedings.
10.6 Release if other Party breaches
If a Party breaches clause 10 in relation to a Dispute, the other Party need not comply with clause 10 in relation to that Dispute.
10.7 Obligations continue
The Parties must continue to perform their respective obligations under this Agreement pending the resolution of a Dispute.
Each Party must pay its own costs of complying with this clause 10.
11.1 Termination for breach or insolvency
A Party may terminate all or part of this Agreement by giving the other Party notice if:
- the other Party breaches a term of this Agreement and fails to rectify the breach within twenty (20) business days after receiving notice requiring it to do so; or
- an event referred to in clause 11.2 happens to the Party.
11.2 Insolvency events
A Party must give the other Party notice immediately if:
- it disposes of the whole or any part of its assets, operations or business except in the normal course of business;
- a step is taken to enter into an arrangement between the Party and its creditors;
- it cannot pay its debts as they become due;
- stops carrying on its business;
- a mortgagee takes a step to enter into possession or dispose of the whole or any part of its assets or business;
- a step is taken to appoint a receiver, a receiver and manager, a trustee in bankruptcy, a liquidator, a provisional liquidator, an administrator or other like person of the whole or any part of its assets or business; or
- there is any change in the direct or indirect beneficial ownership or control of the Party.
11.3 Termination by Developer
- The Developer can terminate this Agreement without notice if:
- it no longer has the right to provide the Program to Client’s for any reason which is outside its control;
- the Client commits a breach of any of the material terms and conditions of this Agreement;
- the Client fails to pay an invoice within fourteen (14) business days of the date on which a valid tax invoice is sent to the Client.
11.4 Immediate suspension or termination
- Any Website that is used for illegal, abusive or unethical activity (such as spamming) may result in your account being immediately suspended, or terminated by Developer without notice to you:
- illegal, abusive or unethical activities include, but are not limited to pornography, obscenity, nudity, violations of privacy, hacking, computer virus, spamming, gambling, or promotion of gambling;
- and any harassing or harmful materials or uses, as determined by Developer at our sole discretion.
- The Developer will make reasonable efforts to alert the Client prior to terminating the Client’s account, and will provide seventy-two (72) hours to cease the respective conduct, however the right to immediately terminate the account is at the Developers sole discretion.
- The Client is responsible for all aspects related to SPAM or Malware issues affecting the Developer's provision of website hosting services and / or email hosting services related to their account – including timely diagnosis and mitigation, costs incurred by either party etc.
- The Developer may immediately suspend access to email service for one or more affected mailboxes. This suspension will continue until the issue is resolved to the Developer's satisfaction.
- The Developer may delete legitimate outgoing messages from the email que. The Developer is not obliged to perform manual review, or to consult with the Client in order to determine the messages considered potentially affected and therefore suitable for deletion.
- The Client is responsible for all aspects related to client side networking or login attempt issues, that may affect access to Online Medical services, including timely diagnosis and mitigation, costs incurred by either party etc.
11.5 Termination by Client
The Client may terminate this Agreement by providing thirty (30) business days notice in writing to Developer. On termination of this Agreement by the Client, the Parties agree that:
- the Developer will invoice the Client for the amount of work which has been completed on the Website up to the point in time when the Developer was notified; or
- for the amount of the loss that the Developer suffers because of the termination;
- the Client will pay the Developers invoice within fourteen (14) business days of its receipt.
11.6 Effect of Termination
- If this Agreement is terminated for any reason whatsoever after the Website has been completed:
- the Developer may on the provision of a reasonable period of notice, provide a packaged export of the Drupal site files and database, for the purposes of assisting the client move the site to another Host. There is no guarantee that the Program will work with any other hosting provider. The Developer will not offer any form of website development of support, such as installation assistance, Pre-Paid Maintenance Agreement (Security and Stability Updates) or Pre-Paid Service Agreement.
- the Developer grants the Client a limited licence to use the Online Medical Module(s) used to operate the Website which are proprietary to the Developer.
- the Client must not distribute or redistribute the Online Medical Module(s) or make any derivative Works of such modules.
12.1 Defined terms
In clause 15, a word or expression defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) has the meaning given to it in that Act.
12.2 Consideration GST exclusive
Any consideration to be paid or provided for a supply made under or in connection with this Agreement, unless specifically described in this Agreement as GST inclusive, does not include an amount on account of GST.
12.3 Gross up
If a Party makes a supply under or in connection with this Agreement in respect of which GST is payable, the consideration for the supply but for the application of this clause 15.3(GST exclusive consideration) is increased by an amount equal to the GST exclusive consideration multiplied by the rate of GST prevailing at the time the supply is made.
12.4 Without set off, deduction or requirement for demand
The recipient of a supply made under or in connection with this Agreement must pay the amount by which the GST exclusive consideration is increased:
- at the same time as the GST exclusive consideration is payable or to be provided; and
- without set off, deduction or requirement for demand.
12.5 Tax invoices
The Client need not make a payment for a taxable supply made under or in connection with this Agreement until it receives a tax invoice for the supply to which the payment relates.
13. Notices and other communications
13.1 Service of notices
A notice, demand, consent, approval or communication under this Agreement (Notice) must be:
- in writing, in English and signed by a person duly authorised by the sender; and
- hand delivered, sent by prepaid post, facsimile or email, to the recipient's address for Notices specified in the Details, as varied by any Notice given by the recipient to the sender.
For the avoidance of doubt, approvals sent from the Developer’s system for managing the development of the Client’s Website are deemed to be valid Notices.
13.2 Effective on receipt
A Notice given in accordance with clause 13.1 takes effect when taken to be received (or at a later time specified in it), and is taken to be received:
- if hand delivered, on delivery;
- if sent by prepaid post, on the second Business Day after the date of posting (or on the seventh Business Day after the date of posting if posted to or from a place outside Australia);
- if sent by facsimile, when the sender's facsimile system generates a message confirming successful transmission of the entire Notice unless, within eight (8) Business Hours after the transmission, the recipient informs the sender that it has not received the entire Notice, but if the delivery, receipt or transmission is not on a Business Day or is after 5.00pm on a Business Day, the Notice is taken to be received at 9.00am on the next Business Day.
14. General provisions
Either Party may assign the terms and conditions contained in this Agreement by providing notice to the other of such assignment.
- This Agreement may be executed by the Parties in any number of identical counterparts. Each counterpart is deemed to be validly executed if it is signed by a Party and sent by facsimile or by electronic mail to all other Parties. It comes into effect when all identical counterparts have been validly executed.
- For the purpose of executing this Agreement or any document required by it, the Parties agree that any signature is valid and the document is validly executed if it is produced by an electronic communication as provided by the Electronic Transactions Act 2001 (Qld).
14.3 Entire Agreement
This Agreement and its Annexures constitutes the entire Agreement between the Parties in connection with its subject matter and supersedes all previous Agreements or understandings between the Parties.
14.4 Further assurances
Each Party will sign and complete all further documents as may be necessary to effect, perfect or complete the provisions of this Agreement.
14.5 Governing law and jurisdiction
The laws of Queensland and Australia govern this Agreement. The Parties submit to the non-exclusive jurisdiction of the Supreme Court of Queensland and the Federal Court of Australia.
The indemnities in this Agreement, if any, are continuing obligations, independent of the other obligations of the Parties under this Agreement and continue after termination. It is not necessary for Developer to incur expense or make payment before enforcing a right of indemnity under this Agreement.
14.7 Liability of Parties
If a Party consists of more than one person:
- an obligation of those Parties is a joint obligation of all of them and a several obligation of each of them;
- a Right given to those Parties is a Right given jointly and severally to each of them, and if exercised by one of them, is deemed to be exercised jointly; and
- a representation, warranty or undertaking made by those Parties is made by each of them.
- The terms and conditions contained in this Agreement will, so far as possible, be interpreted and construed so as not to be invalid, illegal or unenforceable in any respect, but if a provision, on its true interpretation or construction is held to be illegal, invalid or unenforceable:
- that provision shall, so far as possible, be read down to the extent that it may be necessary to ensure that it is not illegal, invalid or unenforceable and as may be reasonable in all the circumstances so as to give it a valid operation; or
- if the provision or part of it cannot effectively be read down, that provision or part of it shall be deemed to be void and severable and the remaining provisions of this Agreement shall not in any way be affected or impaired and shall continue notwithstanding that illegality, invalidity or unenforceability.
The obligation of confidentiality survives termination of this Agreement.
No variation of this Agreement nor consent to a departure by a Party from a provision, will be of effect unless it is in writing, signed by the Parties or (in the case of a waiver) by the Party giving it. Any variation or consent will be effective only to the extent to or for which it may be made or given.
15. Deemed acceptance
By signing the Proposal and returning a signed copy to the Developer, by paying the Deposit or by otherwise instructing the Developer to commence the Client agrees to be bound by the terms and conditions contained in this Agreement and its Schedules.