Terms of service engagement
Savvy Wombat ABN 81 948 113 133
- These Terms of Engagement (“Terms”) will apply for the engagement of us by you in seeking, and the provision of, our Services.
- By accessing, using or engaging our Services, you accept these Terms and agree to be bound by them. If you do not accept these Terms you are not authorised to use our Services.
- We may change or vary these Terms by giving you no less than 30 days' notice of such changes. By accessing, using or engaging our Services after that time, you will be deemed to accept such modified Terms and agree to be bound by them.
- If these Terms are to be modified in any other way, or are not being used, they must be explicitly varied or excluded by the terms of a written agreement between the parties.
- You acknowledge that the provision by us of the Services to you will be first detailed in a quotation or estimate and will be provided under these Terms.
- You further agree and acknowledge that such quote or estimate may contain more detail than as provided under these Terms and may include terms that are different to these Terms. You agree that the quotation or estimate will be taken to be included in these Terms and in the event of any inconsistency, the quotation or estimate prevails to the extent of that inconsistency.
2. Order and provision of our Services
- Any quotation or estimate by us to you does not constitute an offer to provide the Services.
- Unless otherwise stated by us, any quotation or estimate by us will remain valid for 30 days provided that we may withdraw or vary it at any time prior to us agreeing to provide the Services to you.
- Any Order by you to us or any acceptance of the Services by you will constitute your agreement to these Terms.
- No Order by you will be binding on us unless we accept the Order.
- If we accept an Order, a binding Contract will be formed and we will provide the Services to you, and you will pay the Price to us in accordance with the terms of the Contract (which will include these Terms and the terms of the quotation or estimate), but the Contract will be subject to the availability of the materials necessary to supply the Services.
- You are not entitled to cancel any Order or Contract and must pay to us any costs, loss or expense, including for loss of income or profits, incurred by us associated with you purporting to cancel any Order or Contract.
- You must provide us with all information, instructions, plans, specifications, data, passwords and other content and facts relevant to the Services and performance of us providing the Services, at the time you request any quotation from us and prior to providing any Order to us or at a later time as determined and specified by us.
- If at any time we consider that any information, instructions, plans, specifications, data, or other content or facts provided by you to us are not sufficient to enable us to supply the Services to you in accordance with the Contract, you must, at your own cost, provide such further information, documents or assistance as we consider reasonably necessary.
- We will be entitled to rely on the accuracy of any information, instructions, plans, specifications, and facts provided by you.
- If there are any errors in any information, instructions, reports, plans, specifications, or facts provided by you to us, we will, in addition to our other rights under these Terms or at law, be entitled to vary the Price.
- You must ensure the specifications of Services stated in any Order by you will be fit for the intended purpose of the Services.
- You are responsible for the nature, detail and description of any Services in any Order and we will not have any liability to you if there is any discrepancy in the Services for the intended purpose due to any error or mistake on your behalf in communicating to us the nature of the Services required to be provided to you.
- We may cancel any Contract at any time prior to delivery of the Services with no liability other than to repay any amount of the Price paid in advance of the cancellation.
- In the provision of the Services, we may provide you with access to a test application to test the Services. It is your responsibility to test the application.
If not specifically stipulated in the Contract,
- the Price will be according to our price list on the date of the delivery of the Services and is subject to variation (whether before or after the acceptance of an Order or before or after the formation of a Contract or during the term of a Contract);
- the Price is exclusive of any delivery charges and exclusive of GST.
- You must not withhold, make deductions from, or set-off, payment of any money owed to us for any reason.
- We may charge, in addition to the Price, any other fees, charges and surcharges that we incur or notify to you from time to time.
- We may vary our Prices from time to time, particularly with respect to our website hosting, by giving you no less than 30 days' notice.
- In the event you wish to change your website hosting, we will make every effort to assist in the transfer of your website to a suitable hosting server. We do not make any guarantees on the availability of your website during the transfer, or the time required to complete the transfer.
- In order to facilitate our hosting your website, you must provide all necessary website data at the time of engagement with us. This may include your username and password information that you have with third parties.
- We provide domain name services. Domain name records are managed on our name servers.
- We may monitor activity on your website to determine resource usage, pricing, and compliance with these Terms.
5. Development and consulting
- Whenever you engage us for development work, a specification will be written detailing the scope of works which, when accepted by you, forms your Order for those Services. Our work, once we accept an Order, will be limited to the scope set out in that Order and any additional changes you later seek may require a new specification and scope.
- We will provide access to a test application or website incorporating the work we perform for you. It is your responsibility to test the application or website fully before signing a declaration of acceptance. This declaration of acceptance does not limit any warranty offered by us on the work being delivered.
- Unless otherwise agreed, we provide for up to two rounds of revision within the scope. This does not include investigatory or prototype work undertaken prior to a formal specification and quote.
- If we are required to undertake some investigatory or prototype work prior to being able to formally specify the work, we reserve the right to charge this at the Price according to our price list on the date of the delivery of the Services.
- The risk in any Services supplied to you will pass to you, and you will be deemed to have accepted the Services, immediately when the Services are delivered, supplied or performed.
- We may withhold delivering any Services until you make full payment of the Price and any other amounts payable to us. However, if we supply the Services, you will not receive title to the Services (to the extent permitted under law) until you make full payment of the Price and any other amounts payable to us.
- Subject to clause 7.3, you retain ownership of all content you provide for your website and your other such intellectual property in our provision of the Services. You may request access to the content at any time. You also retain ownership of any source code or other source files (such as images) with the limitation that you may not distribute or cause to be distributed any part of the source code or files as part of any service or product outside of the original application provided under our Services.
- We reserve the right to place our logo and a link to our website on your website or other media provided by us when performing the Services for you. However, all title, rights and interest of us in any of our trade marks, logos, branding, or other intellectual property is retained absolutely by us. You do not have any rights or interest in it. You cannot use, transmit or reproduce or give permission for someone else to use, transmit or reproduce that intellectual property.
Until title in the Services passes to you in accordance with these Terms, you will:
- be only a fiduciary bailee of the products of our Services;
- not grant any charge over, or interest in, the products of our Services to any third party;
- return any of the products of our Services (to the extent provided under these Terms) to us immediately on request; and
- authorise us or our authorised agent to enter any property (whether owned, occupied or controlled by you, or not) where the products of our Services are located or maintained and take possession or control of them,
and we may repossess, retain, deal with or sell the products of our Services as we determine in our absolute discretion.
- We may, for the purposes of exercising our rights under clause 7.4, enter (whether physically or electronically) any premises or property owned, occupied or controlled by you and remove the products of our Services. You shall indemnify us from any loss or damage suffered by us or claims brought against us arising out of us retaking possession or control of them.
8. Payments and personal property securities
- Depending upon the nature of the work requested in the Services provided to you, we may request a deposit, and we may thereafter invoice regularly or at the end of the provision of the Services or during each stage of the provision of the Services.
- Unless otherwise specified in the Contract, we require payment of our invoices within 7 days of the date of invoice (the Due Date).
If you do not pay us by the Due Date, we shall be entitled to;
- exercise our rights under clause 7;
- charge you interest on the monies due on a daily basis at the rate of 5% above the Reserve Bank of Australia Cash Rate calculated daily and compounded monthly from the Due Date for payment until the actual date of payment; and
- suspend the supply of further Services under a Contract.
To secure the punctual payment of all amounts owed by you to us, you hereby grant to us:
- a purchase money security interest (as defined under the PPSA) over all present and after-acquired products of our Services that are subject to the retention of title arrangement described under clause 7 of these Terms;
- a security interest (as defined under the PPSA) over all present and after-acquired property of you in relation to which you can be a grantor of a security interest under the PPSA, whether or not you have title to the property, including but not limited to all PPSA retention of title property (as defined under section 51F of the Corporations Act); and
- a fixed charge over all present and after-acquired property of you in relation to which you cannot be a grantor of a security interest under the PPSA, including real property.
- You agree and acknowledge that we may (without limiting our other rights under these Terms, at law or otherwise) lodge caveats over your property, register our security interests, and take any other action to secure and enforce our security under these Terms.
- You must immediately, if requested by us, sign any documents, provide all necessary information and do anything else required by us to ensure that our purchase money security interest or other security interest is a perfected security.
- You must reimburse us for the full amount of any bank or other fees associated with any dishonoured payments or cheques and any legal, debt recovery, agent or other expenses incurred by us on a full indemnity basis associated with any action taken by us to enforce a security interest or recover money from you.
- agree with us that neither you, nor us, will disclose information of the kind specified in section 275(1) of the PPSA (except in the circumstances required by sections 275(7)(b) to (e) of the PPSA);
- agree that, to the extent permitted under section 115(1) of the PPSA, the following provisions of the PPSA do not apply: sections 95, 118, 121(4), 125, 130, 132(3)(d), 135, 138B(4), 142 and 143;
- agree that, to the extent permitted under section 115(7) of the PPSA, the following provisions of the PPSA do not apply: sections 127, 129(2), 129(3), 132, 134(2), 135, 136(5) and 137;
- acknowledge that we may, at your cost, register one or more financing statements in relation to any security;
- waive, if permitted under the PPSA, your right under section 157 of the PPSA to receive notice of any verification statement relating to the registration of any financing statement or any related financing change statement; and
- will not, without prior written notice to us, change your name or initiate any change to any documentation registered under the PPSA.
- You acknowledge and agree that we accepting payment of any sum after the Due Date does not constitute a waiver of any of our rights as provided for in these Terms and in the Contract.
9. Force majeure
- We will not be liable to you for any failure to perform, or delay in performing, our obligations under these Terms or a Contract if the failure or delay is due to any cause beyond our reasonable control. If any such failure or delay continues for a period of 14 days we may terminate any affected Contract.
10. Confidential information and intellectual property
- You will not use, or disclose, any of our Confidential Information we disclose to you.
- We warrant that our use of any designs, instructions or documents provided by us to you will not infringe the Intellectual Property Rights of any other party.
- You warrant that any designs, materials, information, instructions or documents provided by you to us will not infringe the Intellectual Property Rights of any other party.
11. Your representations to us
By engaging us and using our Services, you represent and warrant that:
- (Where you are a natural person) You are eighteen years of age or older.
- If you are engaging us on behalf of another person or entity, you are authorised to act on behalf of that person or entity in engaging us and obtaining our Services.
- You will use our Services in compliance with Australian law.
- You will not infringe, or cause the infringement of, any title, rights or interest in intellectual property of us or of any third parties.
- You will not engage in or cause any action or omission that might compromise the security or reputation of us or our Services or cause damage to us in any form whatsoever.
- You acknowledge and agree that when providing images, music, content or any other information to us, for us to use in the provision of our Services, it is your responsibility to ensure that you have all necessary rights to do so. This includes any and all content supplied by you to be available on any website we host for you.
- We warrant that the Services are fit for the purpose we have provided them, but only on the day on which they are provided, where they have not been modified by any other party or you, and where such purpose was made known to us prior to us accepting your Offer.
- We exclude all express and implied conditions and warranties in relation to the Services except those conditions or warranties that cannot be excluded by law and our liability under any such conditions or warranties is limited to, at our option, arranging to replace or repair the product of our Services.
- Nothing in these Terms are intended to have the effect of contracting out of any applicable provisions of the Competition and Consumer Act 2010 (Cth) or any Fair Trading Act except to the extent permitted by such Acts.
- Our Liability for any liability or Claim in relation to these Terms, any Contract, and any supply of Services (whether under statute, contract, tort, negligence or otherwise) will be limited to the amount of the GST exclusive aggregate Price paid by you to us under the Contract(s) that gave rise to such liability.
- We will not be liable to you for any Liability or Claim of any kind arising directly or indirectly (whether under statute, contract, tort, negligence or otherwise) in relation to any indirect or consequential loss (including but not limited to any loss of actual or anticipated profits, revenue, savings, production, business, opportunity, access to markets, goodwill, reputation, publicity, or use) or any remote, abnormal or unforeseeable loss or any similar loss whether or not in the reasonable contemplation of the Parties.
- To the extent permitted by law, we expressly disclaim all warranties of any kind, express, implied, statutory or otherwise, including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, title and non-infringement, with regard to the Services and do not warrant that the functions performed by the Services will be uninterrupted, timely, secure or error-free, or that defects will be corrected.
The limitations and exclusions in this clause 13 do not apply to the extent that any loss is directly attributable to:
- the personal injury or death caused by our default, breach of these Terms or negligence; or
- fraud by us.
- Each Party must take reasonable steps to mitigate any loss it suffers or incurs.
- No waiver by us of any breach or default of these Terms of a Contract by you shall be deemed to be a waiver of any preceding or subsequent breach or default.
14. Release and indemnity
You indemnify us and our Personnel from and against any Liability or Claim arising directly or indirectly in relation to:
- the accuracy of all information provided by you to us in relation to the Services, or any other associated or incidental matters;
- any third party Claims for the infringement of, any title, rights or interest in intellectual property relating to material supplied by you;
- your breach of these Terms or any Contract;
- the negligence or wilful misconduct of you or any member of your Personnel;
- use by any of your Personnel of the Services that is not in accordance with our instructions;
- damage to your property or the property of any third party during the provision of the Services;
- the Services not being fit for any particular purpose;
- any tests in relation to the Services;
- you or any member of your Personnel directly or indirectly causing any delay in the supply of any Services;
- us having to resupply the Services, or undertake any rework, as a result of the actions or omissions of you or any third party;
- you or any of your Personnel refusing to accept any provision of the Services;
- you or any of your Personnel purporting to cancel any Order or Contract; and
- any proceedings, claims and demands in relation to any secured property.
We may immediately terminate, or suspend the performance of, any Contract and you must immediately pay any money owed to us if:
- you breach any of these Terms or any Contract and do not remedy the breach within 7 days of receiving a notice from us requiring you to do so;
- you breach any of these Terms or any Contract which is not capable of remedy;
- there is any change in the Control of you; or
- an Insolvency Event arises in relation to you.
If we terminate the Contract in accordance with clause 15.1:
- you retain ownership of all title, rights and interest in any content, imagery, or intellectual property in which you had absolute or part title, right or interests in prior to the engagement of the Services or which you provided during the engagement of the Services;
- you retain ownership of any source code or source files created by us with the same non-distribution limitation; and
- all files and data will be delivered to you on payment of all outstanding invoices for the Services and any losses or costs we have incurred.
You may cancel our engagement at any time provided that:
- all outstanding payments for invoices or Services provided by us (whether they have been invoiced at that time or not) have been paid; and
- there are no outstanding Claims against you, or Liabilities to us, that haven't been settled or paid.
The Parties agree:
- no Contract will create any partnership, joint venture, agency or relationship of employment between the Parties;
- these Terms or any Contract may only be amended with our express written agreement;
- any waiver by us must be express and in writing;
- all notices between us and you must be in writing;
- our rights under these Terms or any Contract do not exclude any other rights of us;
- no Contract will be a sale by sample;
- in the event of any dispute, our records will be conclusive evidence;
- the actions of any person claiming to have your authority will bind you to the extent permitted by law;
- if any provision of these Terms or any Contract is unenforceable, the provision will be severed and the remaining provisions will continue to apply;
- you must immediately provide written notice to us if there is any change in the Control of you;
- these Terms and all obligations hereunder shall be binding on your personal representatives, successors and permitted assignees and shall be for the benefit of our successors and assignees.
- we may assign any rights or benefits under any Contract or these Terms or any Contract to any third party;
- you may only assign any rights or benefits under any Contract or these Terms or any Contract with our prior written consent; and
- these Terms and any Contract will be governed by the laws of, and the Parties submit to the jurisdiction of the courts of, the State of South Australia.
In these Terms:
- the headings will not affect interpretation;
- the singular includes the plural and vice versa;
- any other grammatical form of a word or expression defined in these Terms has a corresponding meaning;
- a reference to a document includes the document as novated, altered, supplemented or replaced;
- a reference to a Party includes the Party’s executors, administrators, heirs, successors in title, permitted assignees and substitutes;
- a reference to a person includes a natural person, body corporate, partnership, trust, association or any other entity;
- a reference to a statute, ordinance, code or law includes regulations, rules and other instruments under the statute, ordinance, code or law and any consolidations, amendments, re-enactments or replacements;
- a word or expression defined in the Corporations Act has the meaning given to the word or expression in the Corporations Act;
- 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 binds those Parties jointly and severally;
- any undertaking by a Party not to do any act or thing will be deemed to include an undertaking not to permit or suffer the doing of that act or thing;
- a rule of construction does not apply to the disadvantage of a Party because the Party was responsible for the preparation of these Terms; and
- 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.
In these Terms:
“Authority” means any government or governmental, semi-governmental, administrative or judicial body, tribunal, department, commission, authority, agency, minister, statutory corporation, instrumentality or entity;
“Claim” means any actual, contingent, present or future claim, demand, action, suit or proceeding for any Liability, restitution, equitable compensation, account, injunctive relief, specific performance or any other remedy of whatever nature and however arising, whether direct or indirect, and whether in contract, tort (including but not limited to negligence) or otherwise;
“Confidential Information” means information, whether in visual, oral, documentary, electronic, machine-readable, tangible, intangible or any other form, relating to us or any related entity of us including but not limited to any information relating to any business, products, markets, operations, processes, techniques, technology, forecasts, strategies or any other matter;
“Contract” means a contract formed as a result of the acceptance of an Order by us and being the written agreement regarding the provision of the Services;
“Control” has the meaning set out in the Corporations Act;
“Corporations Act” means the Corporations Act 2001 (Cth);
“Insolvency Event” means any of the following, or any analogous, events:
- you dispose of the whole or any part of your assets, operations or business other than in the ordinary course of business;
- you cease, or threaten to cease, carrying on business;
- you are unable to pay your debts as the debts fall due;
- any step is taken by a mortgagee to take possession or dispose of the whole or any part of your assets, operations or business;
- any step is taken for you to enter into any arrangement or compromise with, or assignment for the benefit of, your creditors or any class of your creditors; or
- any step is taken to appoint an administrator, receiver, receiver and manager, trustee, provisional liquidator or liquidator of the whole or any part of your assets, operations or business;
“Intellectual Property Rights” means any present or future rights conferred by statute, common law or equity in any part of the world in relation to any confidential information, copyright, trade-marks, service marks, designs, patents, circuit layouts, plant varieties, business names, domain names, inventions, trade secrets or other results of intellectual activity in any industrial, commercial, scientific, literary or artistic fields;
“Liability” means any loss, liability, cost, payment, damages, debt or expense (including but not limited to reasonable legal fees);
“Order” means any written or verbal order by you to us, accepting a quote, estimate or specifications for our Services;
“Personnel” means any relative, employee, servant, contractor, subcontractor, agent, partner, director or officer of a Party;
“PPSA” means Personal Property Securities Act 2009 (Cth);
“Price” means the price of the Services as nominated by us from time to time;
“Services” means the services in a Contract;
“Terms” means these Terms and Conditions of Engagement.
“We”, “us” or “our” refer to Savvy Wombat ABN 81 948 113 133 being the entity that accepts the Order to supply Goods or Services to you; and
“You” or “your” refers to you who directly or indirectly accesses and uses our Services.