General Terms
and Conditions
1. INTERPRETATION
1.1 Definitions
In these Conditions unless otherwise stated:-
"Agreement" means any contract for the provision of Services by the Company to the Customer which incorporates these Conditions;
"Amendment Notice" means any notice of variations to the Charges in respect of the Services as may be issued from time to time:
"Charges" means the charges payable by the Customer for the provision of the Services details of which can be found on the Company's Website through http://www.casesensitive.com.au which may vary from time to time;
"Company" means Case Sensitive Solutions, a business registered in Australia under Australian Business Number 38 794 081 941, PO Box 334 Seacliff Park, South Australia 5049
"Commencement Date" means the date upon which the Company confirms acceptance of the Customer's offer to pay for the Services in accordance with these Conditions;
"Credit/Debit Card" means any credit card or debit card issued by financial institutions which is acceptable to the Company and include but are not limited to Master Card, Visa Card and Bank Card.
"Duration Period" is the period commencing on the Commencement Date and expiring on the date the Agreement is terminated in accordance with Clause 7 of these Conditions;
"Equipment" means the computer software provided by the Company in respect of the Specified Service;
"Intellectual Property Rights" means all or any registered or unregistered intellectual property rights in any part of the world, including but not limited to patents, design rights, copyrights, topographical rights, know-how, rights in inventions and ideas and rights to confidence together with any right to apply for any such intellectual property rights and the benefit of any applications for any such intellectual property rights;
"Order" means a request made by the Customer to the Company for Services to be supplied subject to these Conditions;
"Specified Service" means the Service ordered by the Customer.
"Working Day" means a day other than a Saturday or Sunday on which the Clearing Banks in Australia are open to the public for the transaction of business.
1.2 References
In this Agreement, references to "this Agreement" are references to this Agreement together with any document referred to or incorporated herein; "Clauses" are references to clauses to this Agreement; "Persons" include a reference to anybody corporate, unincorporated association or partnership; the singular shall include the plural and vice versa; "Third Party" is a person who is not a party to this Agreement; references to a statute, statutory instrument, regulation, order or licence is a reference to that statute, statutory instrument, regulation, order or licence as substituted, varied or re-enacted from time to time, unless the context otherwise requires.
1.3 Include
The words "include" and "including" are to be construed without limitation.
1.4 Headings
The headings in this Agreement are for convenience only and shall not affect the interpretation of these Conditions.
2. TERMS OF CONTRACT
2.1 Incorporation of Conditions
These Conditions shall apply to and be incorporated into any Agreement between the Company and the Customer relating to the Services.
2.2 Conflict
Subject to any special conditions agreed between the Company and the Customer, these general Terms and Conditions shall apply and shall prevail over any other term of this Agreement. No variation or waiver or addition to this Agreement shall be binding on the Company, unless and until it is confirmed in writing by the Company.
3. SUPPLY OF THE SERVICES
3.1
The Company agrees to supply the Services to the Customer on the following conditions, though please note that these conditions are not an offer to provide service but merely a statement of the terms on which we would provide them. (a) the Company shall supply the Services to the Customer as soon as reasonably practicable and in any event no later than 30 days from the Commencement Date of the Agreement; (b) the Company shall inform the Customer of any delay in the delivery of the Services as soon as reasonably practicable; (c) the Company shall provide a full refund of the Charges to the Customer if it is unable to supply the Services within 30 days from and including the Commencement Date of the Agreement; and
3.2 Risk and Title
(a) risk in any Equipment shall pass to the Customer on delivery; and (b) the Company shall retain ownership of the Equipment for the Duration Period of this Agreement.
3.3 Warranty
The Company warrants to the Customer that the Services will be provided using reasonable care and skill but at all times this will be subject to downtime caused by routine or emergency maintenance by the Customer or occasioned by third parties. The Company will not be liable to the Customer or any third party for any losses whatsoever caused by such downtime.
4. CHARGES
4.1
All accounts are payable on demand. In the absence of demand, payment in full for the goods supplied shall be made by the Buyer to the Seller on or before the fourteenth day following the date of the invoice. The Seller shall also be entitled to charge such reasonable costs as it may incur in recovering any overdue balances.
4.2
The Company shall be entitled to issue an invoice for the Charges on the Commencement Date or as soon thereafter as is reasonably practicable. The invoice shall be entered into the Customer's administration menu and the Customer shall be responsible for checking receipt. The Company will if required provide invoices through the postal system but subject to payment of the Company's Additional Charges that are in force from time to time.
4.3
The Customer agrees to pay for Equipment Licences upon request for such a Licence, except when noted otherwise.
4.4
The Company shall be entitled to vary the Charges from time to time with effect from the date specified in the Amendment Notice. The Company shall issue an Amendment Notice no later than 6 weeks prior to the date that any variation of the Charges shall come into force.
4.5
The Customer shall no later than 6 weeks from the date of deemed receipt of the Amendment Notice send a counter notice to the Company accepting or rejecting the terms of the Amendment Notice. In the event that the Customer specifies in the counter notice acceptance of the terms of the Amendment Notice or fails to send a counter notice within the specified period then the terms of the Amendment Notice shall apply as from and including the date specified in the Amendment Notice and this agreement for Services shall be deemed to be varied accordingly. In the event that the counter notice rejects the terms of the Amendment Notice then until such date as this Agreement has been terminated in accordance with this clause the Customer will be charged the Charges as varied from and including the date in the Amendment Notice. Upon receipt of the Amendment Notice the Customer has the right to terminate this Agreement with effect from the date in the Amendment Notice, such notice of termination to be received by the Company no later than 14 days before the date in the Amendment Notice.
4.6
The Customer acknowledges that the Charges are exclusive of any telecommunication charges. All telecommunication charges incurred by the Customer in connection with the use of the Services remain solely at all times the responsibility of the Customer. The Company does not accept liability or responsibility for any such charges.
4.7
If the Charges are not paid in accordance with the Company's invoice, the Company shall be entitled so far as is permitted by law and without prejudice to any other rights it may have to charge interest on the outstanding amount (both before and after judgement) at the rate of 15% p.a. calculated daily from and including the due date but excluding the date the outstanding amount is paid in full.
4.8
Neither the Company or the Customer shall be entitled to set off a credit against any amount owed to it by the other under the terms of this Agreement or under any other agreement prior to completion of this Agreement.
4.9
Upon termination of this Agreement the Customer shall be bound to pay any outstanding amount of the Charges in respect of the Services received up to and including the date of termination and the Company agrees to refund in full the difference between the Charges for the Services received up to the date of termination and the amount actually received by the Company from the Customer.
4.10
All prices quoted are inclusive of GST @10% unless otherwise stated.
4.12
Customer accounts that are not settled by 30 days after due date will be passed to a debt recovery agency and will incur an administration fee of $45.00.
5. CUSTOMER OBLIGATIONS
5.1
The Customer shall:-
5.1.1
Keep confidential all passwords received from the Company for the purpose of the Services and notify the Company immediately upon becoming aware that a password has become known to an unauthorised third party.
5.1.2
Only make use of Equipment and Services for a legitimate and lawful purpose.
5.1.3
Allow the Company to access the Customer's Equipment to check for any infringements of the Customer's obligations under this Agreement.
5.2
The Customer shall NOT:-
5.2.1
modify or alter the Equipment without the prior consent of the Company;
5.2.2
send, transmit, make available, copy, retransmit, broadcast or publish (whether directly or indirectly) in whatever form any data, information or contractual rights, material or statement which infringes the Intellectual Property Rights or contractual or statutory rights of any person or legal entity or the laws or statutory regulations relating to defamation, contempt, blasphemy, infringement of privacy or personal data rights and any equivalent or related laws in any territory in which they are or may be accessed or made available;
5.2.3
make use of the Services to send or cause to be sent or forwarded electronic mail without the express or assumed agreement of the respective recipient. This shall include but not be limited to not sending large numbers of electronic mails with the same content which is commonly referred to as "spamming";
5.2.4
use the Services to obtain or offer or permit to be offered for profit or otherwise any material, images, displays or services which are erotic or pornographic including but not limited to any other material, images, displays or services which are offensive, illegal or immoral or which is in breach of any legal obligation;
5.2.5
use the Services in a manner which infringes a third party's copyright or other intellectual property rights of whatsoever nature.
5.3
Without prejudice to any other rights of the Company arising from this Agreement or otherwise, the Customer will indemnify the Company against all claims, losses, liabilities, expenses, fines and penalties of whatsoever nature made, incurred or imposed as a result of a breach by the Customer of the terms of this clause.
6. LIABILITY
6.1
To the extent permitted by law, the Company shall not be liable to the Customer save as expressly provided for in this Agreement and shall have no other obligations, duties or liabilities whatsoever in contract, tort or otherwise to the Customer.
6.2
So far as is permitted by law and subject to Clause 3.3 the Company makes no warranty to the Customer as to the quality of the Services or Equipment or the fitness for purpose of the Equipment and in any event, the Company shall only be liable for material breaches of its obligations under this Agreement and to the extent of 500 AUD per breach.
6.3
Neither party shall have any liability to the other in respect of any breach of this Agreement for loss of revenue, business, anticipated savings or profits or any loss of use or value of any equipment or for any indirect or consequential loss howsoever arising, save as set out in Clause 6.4 and 6.5 below.
6.4
Nothing in this Agreement shall:- (a) exclude or restrict the Company for liability in respect of the death or personal injury or fraud resulting from the negligence of the Company, its employees or agents; or (b) where the Customer deals as a consumer, affect the Customer's statutory rights.
6.5
The Customer will indemnify the Company for all loss of revenue, business profits, costs and expenses arising from any failure by the Customer to use the Services in accordance with this Agreement or failure to return (if required under the terms of this Agreement) the Equipment in good condition and against any fines or penalties imposed by any regulatory, advertising or trading body or authority in connection with the use of the site by the Customer.
6.6
The Company disclaims all liabilities in connection with the following :
- loss of material uploaded
- incompatibility of the Service with any of the Customer's equipment, software or telecommunications links
- technical problems including errors or interruptions of the Service
- unsuitability, unreliability or inaccuracy of the Service.
6.7
The Company will indemnify the Customer for claims made against the Customer by third parties for breach of their Intellectual Property Rights if such breach has been caused by the act, omission or otherwise of the Company, its employees or agents.
6.8
Nothing in this Agreement shall prevent the Company from pursuing payment of a debt against the Customer.
6.9
Where the Customer accesses this site from locations outside of Australia, the Customer does so on the Customer's own initiative and is responsible for compliance with local laws.
7. TERMINATION
7.1
Either party may at any time by giving notice in a written and signed summary document, terminate this agreement without compensation to the other party if the other party shall become bankrupt, or if a body corporate pass a resolution or the court shall make an order that one party be wound up, otherwise than by way of amalgamation or reconstruction, or if a receiver or manager on behalf of a creditor shall be appointed, or if circumstances shall arise which entitles the court to make a winding up order.
7.2
The Company shall have the right to terminate this Agreement without reason upon giving 14 days written notice to the Customer and termination shall occur at the expiry of the notice period. The Customer shall have the right to terminate this Agreement any time giving written notice to the Company. Termination shall occur at the reception time of the notice.
7.3
Termination or expiry of this Agreement for whatever reason shall not prejudice or affect any right of action or remedy which shall have occurred or shall accrue thereafter to either of the parties.
7.4
The Company reserves the right to terminate this Agreement without notice upon any of the following events:- (a) the Charges and/or Additional Charges are outstanding for more than 20 calendar days; (b) the Customer is in breach of his obligations as contained in Clause 5.2 inclusive.
7.5
Should the customer not receive email confirmation of their termination within 14 days of their request date the customer is responsible for contacting the company to ensure the termination has been received.
8. CONSUMER'S CANCELLATION RIGHTS
8.1
Any Customer buying as a consumer has the unreserved right to cancel this Agreement at no cost and without any reason within 7 days from either:- (a) the date the contract is formed; or (b) the date that confirmation that the contract is formed is received from the Company whichever is the later.
8.2
The Customer may exercise the right of cancellation by notifying the Company in writing at the Company's address shown in Clause 1.1.
8.3
The Customer will no longer have this right once the Company has commenced provision of the Services with the Customer's consent. The Customer shall be deemed to have given such consent by accepting these Terms and Conditions.
9. INTELLECTUAL PROPERTY RIGHTS
9.1
All Intellectual Property Rights of the Company in any Equipment and ancillary documentation shall at all times for the Duration Period of this Agreement remain vested in the Company.
10. DATA PROTECTION
10.1
All information, mail messages and other data stored on the Company's computer system will be treated as private and solely the property of the Customer at all times and will not be duplicated, copied, reproduced or viewed publicly in any way except with express or implied permission of the Customer and/or for the purpose of the Company's back up services and/or providing the Customer with the Services and/or for the Company's own internal purposes such as market research.
10.2
The Company expressly points out to the Customer that by entering into this Agreement the Customer acknowledges and agrees that once the Customer's unencrypted data passes onto the Internet, it is not secure and is open to unscrupulous use. The Company cannot accept responsibility or liability for any data or information that becomes available by such means against the wishes of the Customer and the Company recommends the use of encryption for transfer of sensitive data or information.
10.3
The Customer accepts that the Company will put its name on its mailing list for receipt of product information and other advertising material from the Company unless it informs the Company in writing that it does not wish to receive such material.
11. FORCE MAJEURE
11.1
The Company shall not be liable for any failure in performing its obligations under this Agreement due to circumstances beyond its reasonable control.
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