Agreement for Process Serving

AGREEMENT FOR PROCESS SERVING
Australe Digital Pty Ltd ABN: 75645098326 (Company) trading as Digital Process Servers
AGREEMENT
1. GENERAL

1.1 This agreement  (the Agreement) govern your use of websites located at digitalprocessservers.com.au, (the sites) and the services provided through these sites form a binding contractual agreement between you, the user of the sites, the contracted process servers and us, Australe Digital Pty Ltd ABN: 75645098326 (Company) trading as Digital Process Servers for that reason, this agreement is important and you should ensure that you read it carefully and contact us with any questions before you use the sites. 

1.2 By completing the online registration process, you acknowledge that you have had sufficient chance to read and understand this agreement and that you agree to be bound by it. 

1.3 If you do not agree to this agreement, you may not access or otherwise use the sites or any resources provided on the sites by the Company.

2. DEFINITION
In this agreement:
Confidential Information means all of the following: (a) the trade secrets of any Party; (b) the names of all past, present, and prospective customers, including all records regarding products and services sold or supplied to them; (c) the names of all past, present, and prospective employees of such Party; (d) the Party’s past, present, and prospective systems, methods and procedures used in the operation of such Party’s business; (e) any other oral, written, electronic or recorded information of any Party’s business, products, financial condition, operations, assets or liabilities; (f) any documentary information that is marked “Confidential”, “Private”, “Secret”, “In Confidence” or “Not to be disclosed”; (g) all notes, analyses, summaries, compilations, studies projections, forecasts budgets, price list or records of any Party that is marked confidential or which by its nature is confidential.

Confidential Information excludes information (a) generally available in the industry other than as a result of wrongful disclosure, (b) independently acquired or developed by a party without breach of this Agreement, or (c) available to a Party on a non-confidential basis from a third-person not bound by any confidentiality agreement or fiduciary obligation owed to the other Party.

Company means the services provided by the Company to you, including but not exclusive to any membership, process serving, or skip tracing, or any techniques, which may be limited in accordance with the type of services selected to be paid. This also includes any services or products that Company may include in or offer through the Company in the future.

Intellectual Property means all intellectual property rights, including all copyright, patents, trademarks, design rights, trade secrets, domain names, know-how and other rights of a similar nature, whether registrable or not and whether registered or not, and any applications for registration or rights to make such an application.

Fees means the amounts payable by the User to the Company for the provision of the services or products provided by the Company.

Sites mean digitalprocessservers.com.au

Agreement means the Agreement for Process Serving and the documents referred to.

User means a person who gains access to the sites and the services or products of the Company by completing the registration through the sites. 

 You mean you, the User.

 Us, We, Our means the Company.

3. ACCESS TO PAID MEMBERSHIP AND PAY AS YOU GO SERVICES

3.1 In consideration of the services fees, the User is entitled to the usage of services, including any applicable services provided by the Company. The Company hereby agrees to provide any applicable services as stipulated on the website.

3.2 The User’s access to the site shall continue indefinitely unless terminated by either party in writing pursuant to clause 17 of these Terms.

3.3 You acknowledge and agree that although we will use all reasonable efforts to ensure that the sites are available, temporary interruptions of the sites may occur. We shall not be liable to any person or entity for loss or damage incurred by such downtimes. 

3.4 All content and services provided on or through the sites are provided "as is" and "as available" for your use. The content is provided without warranties or conditions of any kind either express or implied, including but not limited to implied warranties and conditions of merchantability, fitness for a particular purpose or non-infringement. Your use of the sites and the documentation supplied is solely at your risk.

3.5 We reserve the right to withdraw or amend the sites and any content we provide without notice. We may restrict access to some parts of or the entire sites, from time to time. We reserve the right to withdraw or amend the sites and any content we provide without notice.

4. PAYMENT TERMS

4.1 The user may submit a quote request, but not continue to select an option, in this case, the user will be able to view any quotes on the client dashboard.

4.2 Payment becomes due at the time the process server accepts the job where an invoice is created and sent to the user’s registered email Jobs are opened on payment of invoices.

4.3 Payment terms are either on the opening of the job or 30 days with the Impact Client membership

4.4 The company may include a 4% surcharge for any credit card transactions.

4.5 If the User requests additional services that are not included in the initial quote, the Company reserves the right to charge for the costs of providing such additional products and services at their current market value. Such as; 

a) skip tracing
b) attending a new address
c) re-swearing of affidavits
d) additional attendance at the original address

4.6 Membership users also, known as Impact Clients payment terms are 30 days from the date of the invoice.

4.7 Membership Impact Client is a monthly fee that will be automatically deducted from a nominated credit card each month after the 2 months free trial period expires. This may be cancelled at any time with a 30 notice with the user reverting to be a Standard Client service then payment upfront will be required for each and every service. 

4.8 The User hereby indemnifies the Company against all costs and expenses, including legal expenses on a solicitor/client basis or indemnity basis, incurred by the Company in attempting to recover any overdue amounts.

5. SCOPE OF THE SERVICES

5.1 the Company’s duties include: 

a) the provision of the sites and the services provided with due care and diligence; 
b) provision of access to process servers who register on the website whereby they must comply with various statutory requirements to perform the duties of a process server.
c) the company maintains the records ensuring process servers working on their behalf are compliant with these requirements.
d) the provision of the management and supervision of the sites and the services provided by the Company; and 
e) the provision of support to the User where appropriate.

5.2 The sites and the services of the Company are provided for individual use, internal use by you for your business, or for your own personal use.

5.3 Service level agreement; the job is deemed completed if

a) the process server has completed all nominated attendances.
b) the documents have been served correctly at any one attendance.
c) if the process servers are informed the person no longer resides at the given address and is confident the information is true and correct regardless of attempt numbers.
d) the client withdraws the service after the process server has action the job.
e) it becomes known that the information is not correct and the server believes the job is not able to be complete with the current information.
f) if the address provided is incorrect and the server completes all attendances as required.

5.4 In the event, the person is no longer residing at the given address a skip trace may be warranted and can be ordered through the website.

5.5 Once the document service has been completed it is the responsibility of the client, NOT the server or the company to upload or lodge any documentation to the court. 

5.6 Lost or missing documents; it is the sole responsibility of the client to ensure the information on the client profile is correct at the time of service as original documents will be posted to this address, any errors in this information is not the responsibility of the process server or the company. At the close of the job, an email with a report and invoice is sent to the client, the process server will post the Affidavit of Service and any accompanying documents at that time. 

5.7 You must;

a) Ensure your postal address is secure as we are not responsible for any missing letters documents or post.
b) Notify us immediately if you have not received the documents in the post, whereby you will need to lodge an additional cost for re-swearing.

5.8 You must not:

a) modify, copy, distribute, transmit, display, perform, reproduce, publish, license, create derivative works from, sublicense, transfer, assign, rent, sell or otherwise convey any information, software, products, or services obtained from the sites and the services or products provided by the Company without the prior written consent of the Company; or
b) disassemble, decompile or otherwise reverse engineer all or any portion of the sites, services, Products or Content; or
c) approach any process servers or field agents registered on the website to work independently from the company. This would be a gross act of untrustworthiness by you towards both the process servers and the company.

6. PROHIBITED CONDUCT AND FAIR USAGE

6.1 Prohibited Conduct

You agree to use the sites and the Company only for lawful purposes in compliance with all applicable laws. You may not use the sites to : 

a) disseminate misleading, deceptive or fraudulent misrepresentations about products or services; or
b) send spam or other unsolicited commercial messages; or 
c) bypass any computer systems or secured networks connected to the Services;
d) use manual or automated software, devices or other processes to harvest or scrape Content from the sites; or
e) facilitate or aide any of the above activities.

6.2 Fair Usage

You must not:

a) impose or attempt to impose an unreasonable or disproportionately large load, as determined by the Company in its sole discretion, on the sites and the Document infrastructure;
b) interfere or attempt to interfere with the normal course and process of the sites and any documents 
c) do any other act that may constitute improper use of the sites and any documents, as determined by the Company in its sole discretion.

7. USER WARRANTY FOR INFORMATION PROVIDED

The User warrants that all information provided to the Company for the purpose of the creation of the job and any documents is true, accurate and up to date. Any discrepancy or omission in the information provided to the Company, whether intentional or otherwise, is deemed a breach of this warranty and this agreement. The User indemnifies and holds harmless the Company for any such discrepancy or omission in the information provided. The User acknowledges and agrees that it is solely responsible for any subsequent breach, whether in contract or tor, to any third parties that may result due to any discrepancy or omission in the information provided.

8. ACKNOWLEDGEMENT BY THE USER 

The User acknowledges and agrees with the Company that the sites and any documents will be provided to the User with due care and diligence but that the ability of the Company to provide the sites and any documents is limited to the scope of the agreed services and wholly dependent on the information provided by the User to the Company as well as the User’s own skills and aptitude. As such, the Company cannot guarantee any specific levels of success with respect to the services.

9. REGISTRATION INFORMATION AND PASSWORDS

9.1 By registering to the sites, you agree that all information provided during the registration process is true and accurate and you will update this information in order to keep it current, complete and accurate.

9.2 During the registration process, you will be asked to select a password for your user account. You agree to keep your password confidential at all times and must not disclose it to any third parties. You agree to be fully responsible for activities that relate to your User account or your password. If you have reason to believe that your password has been obtained by someone else without your consent, you must inform us immediately to disable your User account.

10. DISCLAIMER

10.1 This disclaimer of liability applies to any damages or injury caused by any failure of performance, error, omission, interruption, deletion, defect, delay in operation or transmission, computer virus, communication line failure, theft, or destruction or unauthorised access or, alteration of or use of record in connection with the use or operation of the sites, whether for breach of contract, tortious behaviour, negligence or any other cause of action.

10.2 We make no representations or warranties of any kind, express or implied, about the completeness, accuracy, reliability, suitability or availability with respect to the sites and the services or products of the Company and any content, services or products we provide on the sites for any purpose. Any reliance you place on such information is therefore strictly at your own risk. We disclaim any express or implied warranty, representation, or guarantee as to the effectiveness or profitability of the sites and Services or Products of the Company.

11. THIRD-PARTY WEBSITES

11.1 The sites may link to other websites, services or resources on the Internet. These websites are not under our control and are not maintained by the Company. We are not responsible for the content provided on such websites. Links to external websites are only provided by the Company as a convenience, and the inclusion of such a link to external websites do not imply our endorsement of those websites. You acknowledge and agree that when you access other websites on the Internet, you do so at your own risk.

11.2 We make no representations about any other websites you access through our sites. Please understand that other websites are independent of our sites so we do not accept responsibility for such websites.

12. INTELLECTUAL PROPERTY

12.1 The Company is the exclusive owner of all of the Intellectual Property on the sites and any Service or Products. The User must not do anything or omit to do anything which could detrimentally affect the ownership of the Company Intellectual Property. Nothing in these Terms constitutes a transfer of any Intellectual Property from the Company to you.

12.2 The User is entitled during the operation of these Terms to use the Company Intellectual Property including any and all trademarks as it may reasonably require for the sole purpose of effectively accessing the sites and Services or Products. The User will not use any of the Company's Intellectual Property for any other purpose without the prior written consent of the Company.  

12.3 The User must not modify the physical or digital copies of any of Company Intellectual Property it prints off or downloads in any way, and the User must not use any illustrations, photographs, video or audio, or any graphics separately from any accompanying text.

12.4 Each Party undertakes not to use or disclose to any other person or entity any of the other party’s Confidential Information and will only use such Confidential Information in good faith and for the proper purposes of this Agreement and subject to any restrictions imposed by the Party that is the provider of the Confidential Information.

13. EXCLUSIVITY

The User acknowledges and agrees that these Terms establish an exclusive supply relationship with the Company for the sites and the Services or Products. As such, the User agrees that it must not seek or engage any other service providers to provide identical or similar services like those provided by the Company through the sites, including but not exclusive to legal advice regarding any current jobs the User may have open with a process server.

14. LIMITATION OF LIABILITY AND INDEMNITY

14.1 You acknowledge and agree that we shall not be liable for any damages suffered as a result of using the sites, Service or Products and or copying, distributing, or downloading Content from the sites.  In no event shall we be liable for any indirect, punitive, special, incidental or consequential damages (including loss of business, revenue, profits, use, privacy, data, goodwill or other economic advantage) however it arises, whether for breach of contract or in tort, even if it has been previously advised of the possibility of such damage.

14.2 We do not endorse the contents of any Content, and expressly disclaim any and all liability in connection with the Content. In no event shall we be liable for any claims by a third party including, but not limited, to any misleading statements made and/or incorporated into any Content created through the sites, and any cause of action brought under the Competition and Consumer Act 2010 or the Defamation Act 2005. It is your sole responsibility to ensure the accuracy of the data inputted and any other Content.

14.3 You have sole responsibility for adequate security protection and backup of data and/or equipment used in connection with your usage of the sites and will not make a claim against lost data, re-run time, inaccurate instruction, work delays or lost profits resulting from the use of the sites. You must not assign or otherwise dispose of User accounts to any other person.

14.4 Without limiting the foregoing, in no event will our aggregate liability to you exceed, in total, any amounts paid by you to us.

14.5 As a condition of your access to and use of the sites, Services or Products, you agree to indemnify the Company and its successors and assigns for all damages, costs, expenses and other liabilities, including but not limited to legal fees and expenses, relating to any claim arising out of or related to:

a) your access to and use of the sites, Services or Products; or
b) your breach of these Terms and any applicable law or the rights of another person or party.

This indemnification section survives the expiration of your subscription term and applies to claims arising both before and after the subscription term.

15. RELATIONSHIP

The Parties acknowledge that they are not in partnership, there is no joint venture between them or franchise arrangement, and that the only relationship between them is that of service provider (in the case of the Company) and as customer (in the case of the User) in respect of the Service and Products on the terms in this Distribution Agreement. Neither Party may claim or hold itself out as having any other relationship, authority, right or entitlement to represent or act as agent of the other or to have any interest or shareholding in the other.

16. TERMINATION

16.1 You agree that we may, at any time and at our sole discretion, with or without cause or any notice to you, terminate these Terms, your access to the sites and Services or Products, and/or your registration, or suspend or block your access to the sites and Services or Products.

16.2 If applicable law requires us to provide notice of termination or cancellation, we may give prior or subsequent notice by posting it on the sites or by sending a communication to any address (email or otherwise) that we may have for you in our records.

17. DISPUTE RESOLUTION

17.1 The Parties will comply with the following dispute resolution procedure:

a) Where a dispute arises between the Parties, the complainant Party will set out in writing and in English what it regards the dispute to be, informing the respondent Party:

(I) the nature of the dispute; and
(ii) what outcome the complainant wants; and
(iii) what action the complainant Party requires in order to settle the dispute.

b) Both Parties will make every effort to resolve the dispute through negotiation and will in so doing act in good faith.

17.2 For mediation under this Agreement:

a) if the Parties cannot agree under clause 18.1(b) within 21 days, either Party may refer the matter to a mediator; and
b) if the Parties cannot agree about who should be the mediator, either party may ask the Chief Executive Officer (at that time) of the Australian Commercial Disputes Centre to appoint a retired Judge or court officer or practising barrister of at least 10 years admission to the Bar to act as the mediator and that mediator will act as a mediator of the dispute;
c) the mediator may decide the time and place for mediation
d) the Parties or their legal representative(s) must attend the mediation and try in good faith to resolve the dispute through meditation;
e) the Parties are equally liable for the costs of mediation and the costs of the mediator under this part unless they agree otherwise. The Parties must pay their own costs for attending or being represented at the mediation;
f) nothing in this clause affects the right of a Party to take legal proceedings under this Agreement if mediation fails to resolve the dispute;

17.3 Nothing contained in the dispute resolution procedures above will deny or delay and Party seeking immediate injunctive relief from an appropriate Court wherein the reasonable opinion of the Party the failure to obtain such relief would cause irreparable damage to the Party concerned.

17.4 These dispute resolution procedures will not apply to events giving rise to a right of termination of this Agreement where there is no legitimate dispute as to the occurrence of that event.

18. GENERAL

18.1 Variations

This Agreement may only be varied in writing signed by both the Parties.

18.2 Waiver

a) The waiver by any Party of any right or entitlement or to claim in respect of any breach of this Agreement must be in writing signed by the Party so waiving. No purported waiver that is not in writing and signed by the waiving Party will have any effect whatsoever.
b) A waiver will not preclude that waiving Party from relying upon any such right or entitlement arising in the future or to claim in respect of any subsequent breach of this Agreement even if that future right, entitlement or subsequent is the same as that previously waived.

18.3 Notices

a) All Notice’s or requests given by either Party to the other are deemed to have been properly given if posted by mail or emailed to the email addresses of the registered user.
b) Any Notice or request sent by email will be deemed served on the day after being emailed. An email record will be conclusive evidence of the date of emailing. Any Notice or request sent by mail will be deemed served 14 days after the date of posting, not including the date of posting.
c) Any Notice or request sent by a Party to the other must be signed by a director or officer of the sending Party or appear on its face (where an email) to be so signed.
d) All Notices’ must be given in English.
e) Either Party may change its details for service of a Notice by serving a Notice on the other party setting out its new address for service or other contact address.

18.4 Confidentiality of Agreement

All terms of this Agreement shall be kept strictly confidential as between the Parties. None of the Parties to this Agreement shall disclose any terms or information relating to, received, or developed in the course of this Agreement relating to the Agreement or the business of either party without prior written consent of the other party.

18.5 Force Majeure

Except for obligations to make payment, delay or non-performance by any Party will be excused if such delay or non-performance is due to an event or events outside the Party’s reasonable control, including but not limited to:

a) acts of god;
b) natural disasters;
c) sabotage;
d) accident;
e) riot;
f) shortage of supplies, equipment, and materials;
g) strikes and lockouts;
h) civil unrest; or
I) malicious damage.

18.6 Severability

If any clause of this Agreement is invalid under any applicable such Law, the clause will be limited, narrowed, construed or altered as necessary to render it valid, but only to the extent necessary to achieve such validity. If necessary the invalid clause will be deleted from the Agreement and the remaining clauses will remain in full force and effect.

18.7 Counterparts

This Agreement may be executed in counterparts, each of which will be deemed to be an original and all of which together will constitute one instrument and Agreement.

18.8 Entire Agreement

a) This Agreement represents the entire agreement between the Parties relating to the subject matter of the Agreement and supersedes all prior agreements, understandings, representations and warranties relating to the subject matter of this Agreement. 
b) Neither Party has relied on or been induced by any representations or promises made to it prior to entering into this Agreement in reaching its decision to enter into this Agreement on these terms.

18.9 Governing Law and Jurisdiction

It is agreed by the Parties that this Agreement is to be construed in accordance with the laws of Australia and each Party covenants that it submits to the jurisdiction of the Courts of the State or Territory in which the Territory is located for the resolution of any dispute under the Agreement. If the Territory is the whole of Australia then the Parties submit to the jurisdiction of all State and Territory Courts and Federal Courts.

19. UPDATES TO THESE TERMS

19.1 We reserve the right, in our sole discretion, to change, modify, add or remove any part of these Terms, in whole or in part, at any time. Notification of such changes to these Terms will be posted on the site’s and will be effective immediately unless expressed otherwise.

19.2 It is your sole responsibility to periodically check these Terms for any changes. If you do not agree with any of the changes to these Terms, it is your sole responsibility to deregister from the sites. Your continued use of the sites will be deemed as your acceptance thereof. 

19.3 We may assign or sublicense any of our rights or obligations under these Terms at any time, without obtaining your consent.

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