Definitions
“We”, “Us”, “Our” means Securecy Pty Ltd T/A Securecy, its successors and assigns, or any person acting on behalf of, and with the authority of, Securecy Pty Ltd T/A Securecy.
“You”, “Your” means the person/s (Account Holder - end user) requesting Us to provide to You the Services and whom has subscribed to Our Web Site to utilise Our software platform and has established and maintains an Account on Our Web Site and who has not cancelled such an Account or which has not been suspended or cancelled by Us. If there is more than one person requesting the Services is a reference to each person jointly and severally.
“Services” means all Services (including, but not limited to, interactive access to the Internet, data back-up and storage, advice or recommendations, technical service and support and training, etc.) provided by Us to You, at Your request from time to time, including any computer resources, computer communications facilities, goods (including, but not limited to, any files, information, printed or virtual material, or data), IP addresses and/or any other equipment supplied ancillary to the Services, in order to facilitate the provisions of the Services.
“Application” means a software platform involved in the collection, filtering and distribution of data, or otherwise used in connection with the Web Site, the Content and/or Our Services.
“Software” shall mean the programs and other operating information (including documentation) used by a computer, tablet and/or mobile device. Applications developed for use by end users will be accessible through the Web Site or cloud based applications while the business software and user data is stored on servers based at an alternative location for security and back-up purposes.
“Content” means any information uploaded, downloaded or appearing online through the use of Our Services (whether created by Us, You or other users or customers of Our Services) including map data, notifications, alerts, locations, texts and photos or other information.
“Web Site” means a location which is accessible on the Internet through the World Wide Web and which provides multimedia content via a graphical Interface and operational by Us at the following URL: http://www.Securecy.com including the public areas of the Web Site available to any user without logging in to the Services.
“Sub-contractor” means any third party Sub-contractor engaged by Us to assist and carry out duties to complete the Services.
“Charges” means the cost of the Services (plus any GST where applicable) as agreed between Us and You in accordance with clause REF _Ref273368289 \r \h \* MERGEFORMAT 5 below and shall be in $AUS dollars.
“GST” means Goods and Services Tax (GST) as defined within the “A New Tax System (Goods and Services Tax) Act 1999” (Cth).
“Confidential Information” means information of a confidential nature whether oral, written or in electronic form including, but not limited to, this agreement, either party’s Intellectual Property, operational information, know-how, trade secrets, financial and commercial affairs, contracts, client information and pricing details.
Interpretation
In these Terms and Conditions, unless the context otherwise requires:
words importing the singular number include the plural number, and vice versa; and
words importing persons include firms, companies and corporations, and vice versa; and
references to numbered clauses, paragraphs and schedules are references to the relevant clause or paragraph in or schedule to these Terms and Conditions; and reference in any schedule to these Terms and Conditions to numbered paragraphs relate to the numbered paragraphs of that schedule; and
any obligation on any party not to do or omit to do anything is to include an obligation not to allow that thing to be done or omitted to be done; and the headings to the clauses and schedules of these Terms and Conditions are not to affect the interpretation; and any reference to an enactment includes reference to that enactment as amended or replaced from time to time and to any subordinate legislation or byelaw made under that enactment; and the word “including” (and related forms including “includes”) shall be understood as meaning “including without limitation”.
Acceptance
By signing this agreement You confirm that You have read, understood and accept and agree to the following terms and conditions. These terms and conditions form a binding agreement between You and Us for the provision of the Services.
These terms and conditions may only be amended with both parties consent in writing and shall prevail to the extent of any inconsistency with any other document or agreement between both You and Us.
Where this agreement stated that the Services are provided for a particular purpose, You must only allow the Services to be used for that purpose. You may not use the Services to commit an offence or allow anybody else to do so. You are responsible for ensuring that no one interferes with the operation of the Services or make it unsafe. You must follow Our reasonable instructions if We determine that Your use of the Services interferes, or threatens to interfere, with the efficiency of Our network or any third party service provider’s networks.
None of Our agents or representatives are authorised to make any representations, statements, conditions or agreements not expressed by the Director of Securecy Pty Ltd in writing nor are We bound by any such unauthorised statements.
Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 9 of the Electronic Transactions Act 2000 or any other applicable provisions of that Act or any Regulations referred to in that Act.
The Services are provided on the basis of information and instructions You provide to Us (whether written or verbal).You acknowledge that it is Your responsibility to ensure that such is detailed sufficiently to satisfy Our requirements of interpretation and understanding, as once accepted by You, Our quotation shall be deemed to interpret correctly that information and instructions. Therefore, We shall not accept any liability for the provision of Services contrary to Your intention, or errors or omissions therein, due to Your insufficient or inadequate provision of detailed information and instructions, or oversight or misinterpretation thereof, and We may charge You additional costs We may incur in re-providing or rectifying the Services, and if reasonably practical, will notify You of such costs before they are incurred and You agree to them.
You agree to receive emails and/or SMS messages from Us or any other Account Holder to whose account You have subscribed at any time, including updates and information about the Services as well as any information and offers about Our other products and Services or the products and Services of any Account Holder to whose account You have subscribed at any time.
These Terms and Conditions are meant to be read in conjunction with the Terms and Conditions posted on Securecy’ Web Site. If there are any inconsistencies between these documents then the Terms and Conditions contained in this document shall prevail.
This agreement constitutes the entire agreement between both You and Us, and You hereby acknowledge that no reliance is placed on any representation made by Us, but not embodied in this agreement.
Change in Control
You shall give Us not less than fourteen (14) days prior written notice of any proposed change of ownership and/or any other change in Your details (including but not limited to, changes in Your name, address, contact phone or fax number/s, change of trustees or business practice). You shall be liable for any loss incurred by Us as a result of Your failure to comply with this clause.
Charges and Payment
At Our sole discretion the Charges shall be:
as indicated on any invoice/s furnished to You by Us; or fixed for the duration of any fixed contract term, as specified on any supply agreement, quotation, order, invoice or other document provided by Us to You; or
Our quoted Charges (subject to clause REF _Ref414885728 \r \h \* MERGEFORMAT 5.2) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.
Additional and/or Varied Services:
We agree that there will be no charge in the preparation of the initial quotation, which may include discussions, project scoping, etc. However, in some instances the aforementioned services may be charged to You additionally (at Our sole discretion).
We reserve the right to amend the Charges:
where there is any variation to the accepted plan of scheduled Services, or instructions/specifications, which will be charged for on the basis of Our standard hourly rates (and double such rate for any Services provided outside Our normal business hours) and will be shown as variations on the invoice. Payment for all variations must be made in full at their time of completion; and where the performance of this agreement requires Us to obtain products and/or services from a third party, this agreement shall incorporate, and shall be subject to, the conditions of supply of such products and/or services to Us, and You shall be liable for the cost in full, including Our margin of such products and/or services; and Where a contract term is stipulated, We may adjust the monthly Charges from time to time upon providing one (1) months’ written notice to You. Services are billed to You one (1) month in advance (unless otherwise specified).
At Our sole discretion, a deposit of twenty percent (20%) may be required.
Time for payment for the Services being of the essence, the Price will be payable by You on the date/s determined by Us, which may be:
on provision of the Services; or
where the You are subscribing to Our subscription “Plan”:
the first payment is calculated from the commencement date and shall be paid prior to the activation of the Software; and
subsequent payments shall be invoiced to You monthly (or at intervals agreed to by Us) in advance; and
payment shall be made by either direct debit from Your nominated credit card (plus a surcharge may apply per transaction unless otherwise agreed) or bank account; and any goods, training and installation fees are due the date specified on any invoice or other form as being the date for payment; or failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to You by Us.
Payment may be made by bank cheque, electronic/on-line banking, or by any other method as agreed to between You and Us.
GST and other taxes and duties that may be applicable shall be added to the Charges except when they are expressly included in the Price.
Both parties agree that Your obligations to Us for the provision of the Services shall not cease, until:
You have paid Us all amounts owing thereto for the particular Services; and You have met all other obligations due by You to Us in respect of all agreements between Us and You.
Our receipt of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised, and until then Our ownership or rights in respect of the Services, and this agreement, shall continue.
If You pay any Charges in advance and they are varied, or the Services are terminated, We will refund You any overpayment, and You have to pay Us any underpayment. This clause does not detract from any obligations You may have to give notification to terminate the Services, or to pay early termination fees, where applicable.
You shall not be entitled to set off against, or deduct from the Charges, any sums owed or claimed to be owed to You by Us, nor to withhold payment of any invoice because part of that invoice is in dispute. Where You, acting reasonably, dispute any portion of the Charges, You must do so in writing before the due date for payment thereof, and may withhold the disputed portion only until the dispute is resolved by both You and Us. Any non-disputed Charges may not be withheld.
Fixed Contract Term
This agreement shall commence on the date which both You and Us agree that the Services will be made available to You, for Your use (“Start Date”), unless the Services are delayed by any reason beyond Our control. In absence of an agree Start Date, this agreement will deemed to have commenced ten (10) days after this agreement is signed by You, and We will be entitled to start billing You for the Services from the Start Date.
The Services shall continue continue on a monthly basis, unless terminated in accordance with clause REF _Ref418692529 \r \h \* MERGEFORMAT 19.
Subject to clause REF _Ref418693012 \r \h \* MERGEFORMAT 19.1, if You wish to terminate the Services during the term stipulated, We may charge You an early termination fee, the amount of which will depend on the Services acquired by You and the date of termination.
We may terminate the Services prior to the expiry of the fixed contract term at any time (without charging an early termination fee) if We get Your consent to do so, and:
we appropriately off-set the effect of the termination on You, e.g. credit or rebate; and/or
we migrate You to alternative services for the remainder of the fixed contract term.
Terms of Use
When You use the Services, You must:
comply with all laws, all directors by a regulator, all notices issued by authorisation of, or under, law (e.g. Broadcasting Services Amendment Act (Online Service) Act 1999 (Cth) and reasonable directions by Us. Any use which violates any applicable national or international laws is strictly prohibited (e.g. posting or transmitting any unlawful, threatening, abusive, libellous, defamatory, obscene, offensive, indecent, pornographic, profane, or otherwise objectionable information of any kind – including, but not limited to, any transmission constituting or encouraging conduct that would constitute a criminal offense or give rise to civil liability); and
keep Your account information, password, data and hardware confidential and secure. You remain responsible for any use or misuse of such; and
follow any reasonable instructions provided by Us in relation to the Services; and
access and use the Services solely in accordance with these terms and conditions and any reasonable instructions provided by Us; and
employ back-up power and surge protectors at Your premises.
You must not:
use, or attempt to use, or permit another person to us or attempt to use, the Services:
so as to cause offence, to defame, abuse, communicate obscenities, menace or annoy;
for any purpose or activity of an illegal or fraudulent nature in any jurisdiction, including damaging any property or injuring or killing any person, to breach the security of any computer network (hacking), to breach any persons privacy, or to distribute unsolicited software or junk mail;
for advertising purposes without Our express written consent;
to breach any of the intellectual property rights held by Us or any third party, which exist with the Services or any supplied Hardware (including, but not limited to, copying, distributing, selling, renting, leasing or adapting any of the Services) or any property accessible by the Services, with the exception of making one (1) back-up copy of any supplied software or transferring of any supplied software to the hard disk drive of one (1) computer;
to transmit, publish or communicate materials which is defamatory, offensive, abusive, indecent, menacing or unwanted;
to expose Us to liability (including any claims for damages);
in any way which damages, interferes with or interrupts the Services, or a third party service provider’s network used to provide the Services;
to intercept or attempt to intercept any communication not otherwise intended for You.
If, in Our opinion, the Services are being used by anyone in breach of these terms and conditions (including clause REF _Ref419452088 \r \h \* MERGEFORMAT 7) or Internet etiquette, We may:
refuse to post such infringing information to public areas (including, but not limited to, bulletin boards, databases or software libraries);
remove, review or edit such infringing information from any computer on Our network, with the exception of private electronic messages;
discontinue any infringing communication;
suspend the Services indefinitely, or for a specific period;
terminate the Services, and refuse to provide the Services to You, or Your associates, in the future;
inform appropriate government and regulatory authorities of suspected illegal or infringing conduct.
You authorise Us to delete without notice or liability any information or materials found on the Application that is found to be of an obscene nature, unauthorised, unlawful, uncollected for an excessive period of time or excessive in volume.
Provision of the Services
We shall provide the Services to You at such times and in such a manner as We, from time to time, decides at Our absolute discretion. We make no expressed or implied warranties whatsoever as to the fitness of the Services for a particular purpose or as to any other aspect of the Services.
Subject to the any agreed service levels and these terms and conditions, We will use reasonable care and skills in providing the Services to ensure You receive continual, uninterrupted and fault-free Services for the duration of this agreement. However, given the nature of telecommunications systems, including Our reliance on systems, hardware or software and Services We do not own or control (including third party service providers), We cannot guarantee the availability of the Services at all times, which shall be subject to regularly scheduled maintenance cycles, and any events/circumstances beyond Our control. Any failure or delay by Us to provide the Services (promptly or at all) due to circumstances beyond Our control shall not itself constitute a default by Us under this agreement. Only the Services explicitly included in this agreement will be provisions and supported, all other service offering are specifically excluded. Where necessary for commercial, technical or other reasons:
a network or third party service provider connected to this agreement may suspend or terminate its connection to any Services provided; and
those services may suspend or terminate their connection to another network or service provider.
No guarantee is given by Us as to the availability (at any or all times) of the Services (including stability and connection speeds of data transmitted when using the Services) as advertised, as such may vary depending on the service kind and delivery infrastructure, including:
whether You are located in a coverage area;
the number of users sharing the network;
the computer hardware and software You use;
general activity on the Internet;
speed and capacity of the server being accessed.
We may allocate You a domain name, or change Your existing domain name to one of Our choice. Unless otherwise agreed to between You and Us in writing, You have no intellectual property rights in the domain name, email address, User ID or password allocated by Us, and these are not transferable to You once the Services are terminated.
Your Obligations
You accept and acknowledge that during the course of the Services:
the company under which Your account operates owns and is responsible for Your Content. By inputting Your Content onto the Application, You grant Us the right to use, modify, distribute and disseminate Your Content as part of the Services or for any other purpose (and You provide Us with a perpetual, non-exclusive, transferable, sub-licensable, worldwide, royalty-free license to do the same in respect of any “Intellectual Property” related to Your Content) and You acknowledge that (subject to clause REF _Ref486508212 \r \h \* MERGEFORMAT 25) Your name and other personal details may be displayed in connection with Your Content. You agree that We have the right to use Your Content to provide, promote, and improve the Services and to provide Your Content to third parties for their use, modification, distribution or dissemination, including as part of any other product or Services.
Ensure that such Content supplied to Us is not Prohibited Content, or contains any viruses, trojan horses, worms, time bombs, cancel bots or any other software program or routine designed for or capable of interfering with the operation of the Services.
You acknowledge that We do not control any Content provided by any person other than by Us. By using the Services, You may be exposed to Content or other materials submitted by third parties or other users that may be offensive or otherwise objectionable. You acknowledge and agree that We are not responsible for any loss or damage that may be incurred by You as a result of any Content provided by any person, or as a result of any reliance placed by You on the completeness, accuracy or existence of any such Content.
Advertisers and Linked Sites
The display on our Web Site of any advertiser or the provision of a link to third party Web Sites does not constitute Our endorsement of either the advertiser or third party provider or any of their Web Site Content or business practices. As We do not have any control of the Content of any third party Web Sites, access to such Web Sites is at Your sole risk and We recommend that You do a thoroughly review the Terms and Conditions of use and the Privacy Policies of any third party Web Site immediately once You access such a site.
We shall accept no liability in regards to any dealings, promotions or activities between the You and advertisers or third party providers.
Backups
You are responsible for maintaining Your own e-mail backups on You own systems; We do not provide any sort of compensation for lost or incomplete data in the event that backups do not function properly.
It is recommended by Us that You always keeps a backup of Your Web Site whenever possible. If You require assistance in creating backups, please contact Us or view Our support pages.
Unsolicited E-mail (SPAM)
SPAMing, or the sending of unsolicited e-mail, from Our servers, or using a return e-mail address that is maintained on Our servers, is strictly prohibited. Using SPAM to advertise a Web Site hosted on Our network is not only illegal under Australian Federal law, but also constitutes as a violation of this provision. If Your account is found to have been sending SPAM, whether You are aware, or not aware, of the SPAM activity, We reserve the right to limit or terminate the e-mail Services on Your account at any time and without prior notification.
Server Abuse
Any attempts to undermine or cause harm to Our servers, or a customer of Ours, is strictly prohibited. We reserve the right to seek compensation for loss of business and damage done to their servers by You, or dedicated server lessee.
It shall be Your responsibility to ensure the security and confidentiality of Your account and must not allow any unauthorised use of such by any third party. You will be liable for any infringement of these Terms and Conditions in respect of Your account, irrespective of whether such infringement is by You or any authorised or unauthorised third party.
Fault Escalation Responsibilities
You are responsible for notifying Us of a service fault as quickly as possible.
We are responsible for trouble-shooting the source of the service fault, and either rectifying the fault in a timely fashion (i.e. if the fault is within Our network) or escalating the fault to the local fibre company (i.e. if the fault is within their network).
Fault Restoration
Our network staff is available between 7:00am and 7:00pm and have service targets for providing an update to Your fault enquiry within a maximum of sixty (60) minutes of the fault being notified by You to Us. Calls logged outside normal business hours will be attended to on the next business day. We reserve the right to charge support fees inside normal business hours where a fault has been notified and investigated and cannot be traced to either Our network. If the fault is found to be on Our network, no support fees will apply.
Advice and Recommendations
None of Our employees, agents or representatives are authorised to make any representations, statements, conditions or agreements not expressed by Our director, in writing, nor are We bound by any such unauthorised statements.
Any advice, recommendations, information, assistance or service provided by Us in relation to Services provided is given in good faith, is based on information provided to Us, and Our own knowledge and experience. Whilst it shall be Your responsibility to confirm the accuracy and reliability of the same in light of the use to which You make, or intend to make, of the Services, human error is possible under these circumstances, and We shall make all effort to offer the best solution to You.
There are many ways that undesirable content could reach Your computer, including through web browsing, chat, instant messenger applications, Internet denial of Services attached, physical access to Your computer by other people, and sharing of risks or other media. We cannot guarantee that Your connection will be free of viruses, worms, Trojan horses or any other harmful materials and We recommend that You take reasonable precautions to protect Your computer and data, including:
operating firewall to filter Internet traffic;
running and regularly updating anti-virus and anti-spyware software; and
taking reasonable precautions with passwords, credit card numbers and allowing physical access to You hardware by other people.
Unless this agreement includes the provision of back-up and storage of data, We strongly encourage You to prepare and maintain sufficient back-up files and data storage capacity for all Your files and data, including Web Sites, emails and any other electronic data. We shall not be held responsible or liable for any loss, corruption, or deletion of files or data (including, but not limited to, software programmes and/or hardware) resulting from illegal hacking.
Intellectual Property
If during the course of providing the Services, We develop, discover, or put into operation a new concept or process, which is capable of being patented, then such concept or process, or goods shall be and remain Our property and You shall not use, or supply, the same in any way whatsoever without first obtaining Our written consent.
You agree to indemnify Us against any liability, claims, costs (including the actual legal fees charged by Our solicitors), and losses of any kind arising from any actual or alleged claim by a third party that of Our use of Your Content:
infringes a third party’s Intellectual Property rights or privacy rights;
is defamatory, objectionable, obscene or harassing;
is unlawful in any way; or
is otherwise in breach of these Terms and Conditions.
Confidentiality
Neither You nor Us will not (and each party will procure that its officers, employees, agents and contractors):
use any Confidential Information for any purpose or reason, or disclose any Confidential Information for any purpose or reason, other than as required by law, or in accordance with this agreement; and
disclose to any person, other than a professional advisor, the nature or contents of this agreement, or any matter which is the subject of this agreement.
The Confidential Information does not include information which:
is generally available in the public domain otherwise than as a result of a breach of clause REF _Ref486494391 \r \h \* MERGEFORMAT 18.1 by Us; or
was known by Us prior to You disclosing the information to Us.
We agree that You may require any of Our personnel to sign a confidentiality agreement in a form that You approve, as a condition of its acceptance of any of Our personnel.
Both parties agree to indemnify the other fully against all liabilities, costs and expenses which may be incurred as a result of any breach of this clause REF _Ref486494518 \r \h \* MERGEFORMAT 18 by either party. The parties further acknowledge that damages may be an inadequate remedy for breach of this clause REF _Ref486494518 \r \h \* MERGEFORMAT 18 and that either party may obtain injunctive relief against the other for any breach of this clause REF _Ref486494518 \r \h \* MERGEFORMAT 18.
The obligations accepted by both parties under this clause REF _Ref486494518 \r \h \* MERGEFORMAT 18 survive the termination or expiry of the contract.
Termination, Suspension and/or Restriction
Either You or Us may terminate the Services:
(subject to the payment of all outstanding Charges) by providing the other with thirty (30) days written notice of the intention to do so. However, if You are on a fixed term contract, such notice can only be given (without consequence) on the expiry of the contract term; or
at any time if the other is in material breach of this agreement and:
have been notified of such in writing and have failed to remedy it within fourteen (14) days of such notification; or
the material breach is something incapable of remedy, in which case the Services can be terminated upon immediate notification to the offending party.
by providing the other with reasonable notice if:
the other becomes bankrupt or insolvent or appears likely to do so; or
the law requires it; or
the provision of the Services becomes illegal, or either party has reasonable grounds to believes they may become illegal.
If You terminate the Services prior to provision thereof to You, We may charge You any reasonable costs incurred by Us while preparing to provide the Services to You.
We can suspend or restrict the provision of the Services (by cancelling Your access to the Services, Your password/s, and/or license to use Services supplied by Us) to You:
temporarily if We reasonably believe it is desirable to do so in order to maintain or restore part of any third party service provider’s network. We will try and perform maintenance and repair work at time that will cause the least inconvenience to Our customers. We will not charge You for (and rebate if necessary) any Charges during any period of suspension exceeding twenty-four (24) hours. If We have no alternative but to cancel the Services due to necessary maintenance or restoration of any part of any third party service provider’s network, We will not charge You any applicable termination fees; and
during the period before We terminate the Services because You are in material breach of this agreement. You will be in material breach of this agreement if You:
do not pay the Charges for the Services when they become due and payable;
use the Services in a way which We reasonably believe is fraudulent, poses an unacceptable risk to Our security or network capability (or that of any third party service provider’s network or other customers), or is illegal or in contravention of this agreement.
If You ask Us to reconnect the Services following suspension for failing to pay the Charges, You will have to pay Us a reconnection fee.
We may terminate, suspend or restrict the Services:
in accordance with clause REF _Ref418694036 \r \h \* MERGEFORMAT 19.1(c);
You die;
there is an emergency that affects Our ability to provide the Services;
We are unable to provide the Services to You due to events outside Our reasonable control, such as failure in equipment that is not owned or operated by Us, or any force majeure event;
if We reasonably believe that providing the Services may cause death, personal injury or damage to property;
if You vacate the property to which the Services are connected;
there is excessive or unusual use of the Services that is in breach of this agreement; or
We reasonably consider that You pose an unacceptable high risk to Us.
Limitation of Liability
You acknowledge that the Internet is separate from this agreement, and that use of the Internet (and any information and materials either issued by You during Your use of the Services, or made available to You through Your use of the Services) is at Your own risk and subject to any applicable legislation. We have no responsibility for any goods, Services, information or materials (including the accuracy or appropriateness thereof), software, or other materials which You may issue or obtain when using the Internet.
Whilst You and Us are liable to each other for breach of contract or negligence under the principles applied by the courts, neither You or Us are liable to each other for any loss to the extent that it is caused by the other, including negligence or breach of this agreement, or failure to take reasonable steps to avoid or minimise the loss suffered.
We are not liable for:
any charges in relation to the telephone service incurred by You when dialling into the Internet. It is Your responsibility to ensure that You are dialling the correct telephone number for Your location and that it is a local call cost; and
any indirect, incidental, special and/or consequential loss and/or expense, claim or cost (including legal fees and commissions, loss of profit/income, business, contracts, opportunity, goodwill, reputation and/or anticipated saving), any loss or corruption of data, or other liabilities (howsoever arising) which You may suffer/incur as a result of Us failing to comply with Our obligations in relation to the Services (including resulting from, or in relation to, any failure or delay in Us providing the Services under this agreement, or any loss or data), where that loss is caused by events outside Our reasonable control, such as failure in equipment that is not owned by Us, as a result of a suspension of services in accordance with clause REF _Ref419456592 \r \h \* MERGEFORMAT 8.1 or any force majeure event under clause REF _Ref419445813 \r \h \* MERGEFORMAT 26.5. Alternatively, Our liability shall be limited to damages which under no circumstances shall exceed the Charges (but only to the extent that such Charges shall take into account the nature or length of the breach in relation to this agreement, and any contributory negligence on Your part).
The liability of Us to You shall expire twelve (12) months from the issue of the last invoice relevant to the particular Services, unless in the meantime You have made a claim in writing to Us, specifying a negligent act, omission or statement said to have caused alleged loss or damage sustained or sustainable.
The provisions set out in this clause REF _Ref419445832 \r \h \* MERGEFORMAT 20 will continue unaffected by termination or suspension of the Services.
Defects, Warranties and the Competition and Consumer Act 2010 (CCA) and Fair Trading Acts (“FTA”)
Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the CCA or the FTA in each of the States and Territories of Australia, except to the extent permitted by those Acts where applicable.
No Warranty is provided by Us in respect to the Services, which is provided “as is” and does not warranty that the Services can be provided with uninterrupted use or error free. Whilst We will endeavoured to ensure that the Services are always available for use this may on occasion be not possible due to circumstances beyond Our control such as internet outages or scheduled maintenance etc. It is the Account Holder’s responsibility to determine the suitability of the Services for its business and shall indemnify and hold harmless Us in respect of all claims arising out of use of the Services, unless it is deemed to be an act of negligence.
Personal Property Securities Act 1999 (“PPSA”)
In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.
Upon assenting to these Terms and Conditions in writing You acknowledge and agree that these Terms and Conditions constitute a security agreement for the purposes of the PPSA and creates a security interest in:
all Services previously provided, or that will be provided in the future, by Us to You;
all Your present and after acquired property being a charge, including anything in respect of which You have at any time a sufficient right, interest or power to grant a security interest in for the purposes of securing repayment of all monetary obligations by You to Us for Services – that have previously been provided and that will be provided in the future by Us to You.
You undertake to:
promptly sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which We may reasonably require to;
register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;
register any other document required to be registered by the PPSA; or
correct a defect in a statement referred to in clause REF _Ref273359535 \r \h \* MERGEFORMAT 22.2 REF _Ref273363844 \r \h \* MERGEFORMAT (a) REF _Ref273363733 \r \h \* MERGEFORMAT (i) or REF _Ref273359535 \r \h \* MERGEFORMAT 22.2 REF _Ref273363844 \r \h \* MERGEFORMAT (a) REF _Ref273363926 \r \h \* MERGEFORMAT (ii);
indemnify, and upon demand reimburse, Us for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register established by the PPSA or releasing any registration made thereby;
not register a financing change statement in respect of a security interest without the prior written consent by Us;
not register, or permit to be registered, a financing statement or a financing change statement in relation to the collateral (account) in favour of a third party without the prior written consent by Us.
Both parties agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these Terms and Conditions.
You waive Your rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
You waive Your rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
Unless otherwise agreed to in writing by Us, You waive Your right to receive a verification statement in accordance with section 157 of the PPSA.
You must unconditionally ratify any actions taken by Us under clauses REF _Ref273359535 \r \h \* MERGEFORMAT 22.2 to REF _Ref273359554 \r \h \* MERGEFORMAT 22.5.
Subject to any express provisions to the contrary nothing in these Terms and Conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.
Security and Charge
In consideration of Us agreeing to provide the Services, You charge all of Your rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by You either now or in the future, to secure the performance by You of Your obligations under these terms and conditions (including, but not limited to, the payment of any money).
You indemnify Us from and against all Our costs and disbursements, including legal costs on a solicitor and own client basis, incurred in exercising Our rights under this clause.
You irrevocably appoint Us, and each of Our directors, as Your true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause REF _Ref286223866 \r \h \* MERGEFORMAT 23 including, but not limited to, signing any document on Your behalf.
Default and Consequences of Default
Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at Our sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
If You owe Us any money, You shall indemnify Us from and against all costs and disbursements incurred by Us in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, Our contract default fee, and bank dishonour fees).
Further to any other rights or remedies We may have under this agreement, if You have made payment to Us and the transaction is subsequently reversed, You shall be liable for the amount of the reversed transaction, in addition to any further costs We incur under this clause REF _Ref419459025 \r \h \* MERGEFORMAT 24 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to Your obligations under this agreement.
Without prejudice to any other remedies We may have, if at any time You are in breach of any obligation (including those relating to payment, whether or not the payment is due to Us) We may suspend or terminate the provision of Services to You (this includes but is not limited to, suspending or restricting the Services) under clause REF _Ref419458193 \r \h \* MERGEFORMAT 19, and any of Our other obligations under these terms and conditions. We will not be liable to You for any loss or damage You may suffer because We has exercised Our rights under this clause, and all amounts owing to Us shall, whether or not due for payment, become immediately payable.
Privacy Act 1988
You agree for Us to obtain from a credit reporting body (CRB) a credit report containing personal credit information (e.g. name, address, D.O.B, occupation, previous credit applications, credit history) about You in relation to credit provided by Us.
You agree that We may exchange information about You with those credit providers and with related body corporates for the following purposes:
to assess an application by You; and/or
to notify other credit providers of a default by You; and/or
to exchange information with other credit providers as to the status of this credit account, where You are in default with other credit providers; and/or
to assess the creditworthiness of You including Your repayment history in the preceding two (2) years.
You consent to Us being given a consumer credit report to collect overdue payment on commercial credit.
You agree that personal credit information provided may be used and retained by Us for the following purposes (and for other agreed purposes or required by):
the provision of Service; and/or
analysing, verifying and/or checking Your credit, payment and/or status in relation to the provision of Services; and/or
processing of any payment instructions, direct debit facilities and/or credit facilities requested by You; and/or
enabling the collection of amounts outstanding in relation to the Services.
We may give information about You to a CRB for the following purposes:
to obtain a consumer credit report;
allow the CRB to create or maintain a credit information file about You including credit history.
The information given to the CRB may include:
personal information as outlined in REF _Ref384904145 \r \h \* MERGEFORMAT 25.1 above;
name of the credit provider and that We are a current credit provider to You;
whether the credit provider is a licensee;
type of consumer credit;
details concerning Your application for credit or commercial credit (e.g. date of commencement/termination of the credit account and the amount requested);
advice of consumer credit defaults, overdue accounts, loan repayments or outstanding monies which are overdue by more than sixty (60) days and for which written notice for request of payment has been made and debt recovery action commenced or alternatively that You no longer has any overdue accounts and We have been paid or otherwise discharged and all details surrounding that discharge (e.g. dates of payments); information that, in the opinion of Us, You have committed a serious credit infringement; advice that the amount of Your overdue payment is equal to or more than one hundred and fifty dollars ($150).
You shall have the right to request (by e-mail) from Us:
a copy of the information about You is retained by Us and the right to request that We correct any incorrect information; and that We do not disclose any personal information about You for the purpose of direct marketing.
We will destroy personal information upon Your request (by e-mail) or if it is no longer required unless it is required in order to fulfil the obligations of this contract or is required to be maintained and/or stored in accordance with the law.
We can make a privacy complaint by contacting Us via e-mail. We will respond to that complaint within seven (7) days of receipt and will take all reasonable steps to make a decision as to the complaint within thirty (30) days of receipt of the complaint. In the event that You are not satisfied with the resolution provided, You can make a complaint to the Information Commissioner at www.oaic.gov.au.
General
Any notice to be given by either party to the other may be sent by either e-mail, fax or recorded delivery to the most recent e-mail address, fax number or address notified to the other party, and if sent by e-mail shall (unless the contrary is proved) be deemed to be received on the day it was sent or if sent by fax shall be deemed to be served on receipt of an error free transmission report, or if sent by recorded delivery shall be deemed to be served two (2) days following the date of posting.
The failure by either party to enforce any provision of these Terms and Conditions shall not be treated as a waiver of that provision, nor shall it affect that party’s right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
These Terms and Conditions and any contract to which they apply shall be governed by the laws of New South Wales, the state in which We have Our principal place of business, and are subject to the jurisdiction of the Gosford Court in that state.
We may assign, appoint agents, transfer, license or sub-contract all, or any part of, Our rights and obligations contained in this agreement without Your consent.
You may not assign, subcontract or otherwise transfer any rights and responsibilities under this agreement, except:
with Our full consent, which will not be unreasonably withheld in the case of a solvent assignee with the technical expertise and financial resources to satisfy Your obligations under this agreement (proof of which will be Your responsibility); or
to a related company (within the meaning of the Corporation Act 2001); and
in either case, only with the re-granting or replacement by You to Our satisfaction of any guarantee which exists in relation to the original agreement.
Neither You or Us shall be liable for any default due to fires, explosions, severe weather, industrial disputes, insurrection, requirements or regulations, or any civil or military authority, acts of war (whether declared or not), civil unrest, acts of God, earthquake, flood, riot, embargo, government act, strike, lock-out, storm, terrorism, DNS caching, propagation, or other DNS issues outside the reasonable control of either party, or failure or outage of any telecommunications links or other connections forming part of the Internet which are beyond the reasonable control of either party.
Both parties warrant that they have the power to enter into this agreement, and have obtained all necessary authorisations to allow them to do so, they are not insolvent and that this agreement creates binding and valid legal obligations on them.
You agree that We may amend these terms and conditions at any time, subject to the following:
if We reasonably believe that any proposed amendment will benefit You, or have a neutral impact on You, We can make the amendment immediately; We will take reasonable steps to bring the general nature of such changes to Your attention; or
Where We reasonably believe that any proposed amendment will have a minor impact on You, We will provide You with fourteen (14) days written notice of such change, and if the amendment will have more than a minor impact on You We will allow You to terminate this agreement without incurring any early termination fees.
PLEASE NOTE: a larger print version of the Terms and Conditions is available from Securecy on request