TERMS AND CONDITIONS
By purchasing a product through [email protected], the Customer is automatically accepting these Terms. The Seller, Digital Process Servers agrees to be bound by these Terms in the same manner.
In these Terms of Trade, unless the context indicates otherwise:
ACL means the Australian Consumer Law under the Consumer and Competition Act 2010 (Cth) as amended;
Agreed Delivery Address means the address for delivery or collection of the Services as nominated in an Order or subsequently agreed in writing by the parties, or as specified in item 3 of the schedule;
Business Day means any day other than a Saturday, Sunday, or public holiday in Australia;
Collateral means property that is subject of a security interest;
Customer means the person named in item 1 of the schedule;
Default Event means any one of the following events:
(a) the Customer fails to make any payment when due, whether for the Services or otherwise;
(b) Winding Up commences against the Customer;
(c) a receiver is appointed to the Customer;
(d) the Customer becomes insolvent, bankrupt or commits an act of bankruptcy;
(e) proceedings are commenced or an application is made for the appointment of any persons listed in items (b) to (e) above; or
(f) a mortgagee or their agent enters into possession of the Customer assets;
Disputant means a party to a Dispute;
Dispute means a dispute arising out of or related to these Terms and Conditions;
Force Majeure Event means circumstances beyond our reasonable control shall include, but not be limited to compliance with any laws, regulations, orders, acts, instructions or priority request of any government, or any department or agency, civil or military authority, acts of God, acts of the public enemy, the Customer acts or omissions, fires, floods, strikes, lockouts, embargoes, wars, labour or material shortages, riots, insurrections, defaults of our suppliers or subcontractors, delays in transportation, or loss or damage to Services in transit;
Grantor means the person who has the interest in property to which a security interest is attached;
GST means a tax imposed under the A New Tax System Goods and Services Tax) Act 1999;
Handling and Delivery Charges means any handling and delivery charges for the Services that are notified to the Seller, by the person in charge of delivery, including those relating to affidavits and legal documents handling, and any credit card or other bank transaction fees;
Initial Period means the 14 day period after a notice of a Dispute is given under clause 11.2;
Local Currency means the local currency of the Customer as agreed at the time of Order (for example, Australian dollars in Australia, Pounds sterling in the United Kingdom and Euro for other EU countries);
Material means any material in which the Customer may have Intellectual Property Rights provided by the Customer for use by the Seller, in the production, development and supply of the Services to the Customer;
Order means an order in writing for the purchase and supply of Services placed by the Customer in accordance with these Terms of Trade;
Order Confirmation means the written confirmation of the Seller, acceptance of an Order in whole or in part, setting out the details of the Order accepted, including but not limited to the quantity of Services that the Seller, will supply to the Customer, the amount due in respect of the Order (based on the fees including any discounts plus any Handling and Delivery Charges), the date by which payment must be received, the Agreed Delivery Address, and the expected delivery date for the Order;
Order Form means the order form specified by the Seller, for use when placing an Order for a Services;
Services means, a service which is the subject of an Order which has been accepted by the Seller,
Payment means payment of any amount relating to Services in accordance with these Terms and Conditions;
Quote means a quotation by the Seller, for the supply of particular Services containing details as specified in these terms and conditions;
Tax Invoice means a tax invoice as defined in Australian Tax System Goods and Services Tax) Act 1999;
Terms mean these Terms of Trade;
Seller, means any person or entity that places an Order with the Seller, and agrees by conduct or by virtue of notice or otherwise to be bound by these Terms and Conditions, including any related company, related party, officer and authorised person of the relevant person; and
Winding Up means commencing to be wound up, or suffering a provisional liquidator, liquidator, official manager or any other administrator of the affairs of insolvent companies to be appointed.
2. OUTLINE & ORDERING Goods and/or Services
2.1 These terms and conditions apply to the supply of all Services by the Seller, to the Customer from the date that the Customer accepts these terms and conditions.
2.2 The Customer accepts these terms and conditions when:
(a) the Customer submits an Order; or
(b) the Customer accepts delivery of, or any part of, the Services pursuant to an Order or otherwise; or
(c) the Customer makes a payment, or a partial Payment, for any Services supplied by the Seller.
2.3 The Customer may request a Quote from the Seller, relating to the potential supply of Services.
2.4 The Seller, may provide to the Customer a Quote relating to the potential supply of Services, which may include the price and quantity of the Services proposed to be supplied by the Seller, and other relevant details as necessary.
2.5 If the Quote is acceptable to Customer, the Customer may place an Order for each supply of Goods and/or Services, subject to clause 2.6.
2.6 All Orders are subject to the Seller, ’s review and acceptance, which may be withheld at the Seller, ’s absolute discretion and are subject to clause 2.7.
2.7 If an Order is not placed with the Seller, within 14 days of the date of the Quote, the details provided to the Customer in the Quote may be subject to further written confirmation by the Seller, at our absolute discretion.
2.8 Unless otherwise agreed by the Seller, in writing, the Seller, will not be bound by any conditions added by the Customer in an Order (express or implied).
2.9 The Customer may submit an Order to the Seller, using the Order Form.
2.10 All Orders must indicate the following:
(a) the Services being ordered by product number, if available;
(b) the number of Services being ordered; and
(c) the Agreed Delivery Address for the Goods and/or Services.
2.11 Following the receipt of an Order from the Customer, the Seller, will process the order and notify the Customer in writing through an Order Confirmation or an order rejection notice of its:
(a) acceptance or rejection of the Order in its entirety; or
(b) acceptance of the Order in part; or
(c) acceptance of the Order subject to specified conditions.
2.12 Any variation of an Order or cancellation of an Order must be agreed to in writing by the Seller.
3.1 Unless otherwise agreed to in writing by the Seller, or by the Seller, ’s authorised representative, subject to this clause 3, the price charged and payable for the Services shall be the price in Local Currency at the date the Seller, accepts the Order, together with any applicable taxes, charges and delivery costs in relation to the Goods and/or Services.
3.2 Prices contained in any Quote or Order for the supply of Services are based on the cost prevailing and the specification supplied at the time of the Quote or Order. The Seller, reserves the right to vary the price if:
(a) there is any movement in the cost of supplying the Services specified in the Order; or
(b) if the Services specified in the Order are varied from the Services specified in the Quote, and the Seller, provides the Customer with reasonable notice of any such variation of price.
4. PAYMENT OF ORDERS
4.1 Where the Seller, accepts an Order in accordance with clause 2, it will issue the Customer an Order Confirmation.
4.2 Acceptance of an Order Confirmation by a Customer will constitute acceptance of the price set out in the Order Confirmation unless otherwise agreed in writing by the parties.
4.3 The Customer must pay GST and any other taxes, duties and government charges imposed or levied on the goods in connection with any Order or these terms and conditions. Unless otherwise indicated, the price and all other considerations for any supply made under any Order are exclusive of any GST imposed on the supply.
4.4 The Customer’s liability to pay for the Services will not be offset, reduced or affected in any way as a result of any returns of, or credits or rebates relating to, the Goods and/or Services, unless otherwise agreed in writing by the Seller ; or
4.5 Payments must be made according to the methods selected by the Seller, specified in item 5 of the schedule. The Seller, may select from one of the following methods of payment:
(a) Payments to be received in full upon making an Order; or
(b) Services to be delivered on credit to the Customer; or
4.6 If Services are delivered to the Customer on credit, the following conditions apply:
(a) The person named on the client profile, guarantees to the Seller, the due and punctual payment by the Customer of any amounts due to the Seller, under these Terms;
(b) The Customer must pay a tax invoice provided by the Seller, within 30 days of the date of issue. Applicable to paid membership client type; impact client.
4.7 The Seller, reserves the right to revoke at any time any credit extended to the Customer because of the Customer’s failure to make any payment when due or for any other reason.
4.8 The Customer may pay for Services in full by direct debit, electronic deposit or credit card approved by the Seller. Credit card payments will incur standard fees as set by respective banking institutions from time to time for the invoiced amount.
4.9 If the Customer fails to make a payment when it is due, the Seller, shall, in addition to all other rights and remedies available under these Terms and Conditions at law or in equity, be entitled to charge Default Interest at the rate of 4% per annum plus the interest rate set by the Reserve Bank of Australia.
4.10 Seller, reserves the right to pass any debts incurred under this Supply Agreement to a collection agency and refer the Customer’s details to credit reporting agencies if the Customer’s account remains outstanding for more than three (3) months. In addition to any outstanding amounts, the Customer agrees to indemnify Seller, for all legal costs (on a solicitor and client or full indemnity basis, whichever is greater) and other expenses incurred by Seller, in connection with a demand, action, or other proceedings (including mediation, out of court settlement or any action taken for recovery of the debts from the Customer) arising out of a breach of the terms of this Agreement, including the failure by the Customer to pay an amount by the due date.
4.11 Default Interest pursuant to clause 4.9 shall be:
(a) payable on demand; and
(b) calculated daily from the date the payment was due to the actual date that the payment is made in full.
4.12 Any Payment the Customer makes to the Seller, shall first be credited against any Default Interest accrued pursuant to this clause 4 to the actual date of Payment.
4.13 If as a consequence of an instruction from the Customer, the Seller, delays or suspends (but not cancels) an order or any part of an order for a period of 3 days or more, the Seller, may:
(a) request the Payment in full for all work in progress relating to the relevant Order at the time of the suspension; and/or
(b) vary the Price for the uncompleted portion of the relevant Order.
4.14 The Customer may not cancel an Order, or any part of it, without our written consent, which may be withheld in the Seller, ’s absolute discretion.
4.15 Without prejudice to the Sellers right to refuse consent for the Customer to cancel an Order under clause 4.13, as a condition of giving such consent the Seller, may require that the Customer pay any and all costs reasonably incurred by the Seller, in relation to the cancelled Order or the cancelled part of the Order plus a reasonable profit to the date of cancellation.
4.16 The Seller, may in writing cancel an Order or delivery of an Order without liability to the Customer (save as required by relevant laws) if:
(a) the Seller, reasonably forms the opinion that the Customer is insolvent or at material risk of insolvency;
(b) the Customer fails to pay any amount for the Services on the due date; or
(c) the Seller, reasonably forms the opinion that supplying Services to the Customer may have a negative impact upon the Seller, ’s business or commercial reputation or image.
5. DELIVERY AND RETURN OF AFFIDAVITS AND DOCUMENTS
5.1 The nominated delivery address for document returns will be the address provided on the customer profile unless otherwise advised through shared notes. the Seller shall utilise Australia post or any other carrier deemed necessary with the following conditions:
(a) The Customer or its duly authorised representative shall be present at the Agreed Delivery Address for delivery. If not present, the Seller, its duly authorised representative, or the person in charge of delivery may leave the documentation at the place and in which case, it shall not be responsible for any claims, costs or losses arising from such a situation.
(b) The Seller will not be liable for any loss, including any consequential loss, for failure or delay in delivery due to any cause whatsoever.
5.2 The Seller, reserves the right to make deliveries in instalments and these Terms and Conditions shall be severable as to such instalments.
6. EXPRESS WARRANTY
6.1 The warranty against defects (Warranty) contained in this clause 8 is provided by: trading from 6/8 Edward St Bunbury WA
6.2 The Services shall be covered by this Warranty for a period of 1 month from the date of delivery unless otherwise stated in writing.
6.3 The Customer may make a claim under this Warranty by providing the Seller, notice in writing to our address specified in clause 8.1 containing a reasonable description of the defect in the Service.
6.4 The Seller, will during the Warranty period and subject to clause 6.6, replace at our option, any component or part of the service or document which our examination shows to be defective.
6.5 The benefits to the Customer given by this Warranty are in addition to the Customer other rights and remedies under the ACL or the relevant laws.
6.6 This Warranty against defects is provided in addition to other rights and remedies the Customer may have at law. The Seller's services come with guarantees that cannot be excluded under the Australian Consumer Law. The Customer is entitled to a replacement or refund for a major failure and for compensation for any reasonably foreseeable loss or damage.
7. EXCLUSIONS AND LIMITATIONS
7.1 The exclusions and limitations in this clause 7 are subject to clause 8 (Statutory Rights).
7.2 All express or implied representations, conditions, statutory guarantees, warranties and provisions (whether based on statute, common law or otherwise), relating to these Terms and Conditions, that are not contained in it, are excluded to the fullest extent permitted by law.
7.3 Any liability arising in relation to the Services the subject of the Order or the Seller, supply to the Customer, arising and whether for consequential loss or otherwise, including any liability arising by virtue of any representation or warranty, whether express or implied by law, is hereby excluded to the fullest extent permitted by law.
7.4 No warranty is given and the Seller, will not be liable for:
(a) alterations to the Service for which the Seller, is not responsible;
(c) loss caused by any factors beyond our control.
7.5 The Seller, will not be liable for any special, indirect, consequential or economic loss or damage or loss of profits (in contract or tort or arising from any other cause of action) suffered by the Customer or any other person resulting from any act or omission by the Seller, (including breach, termination or non-observance of the terms of an Order or agreement which incorporates these Terms and Conditions)
7.6 The Seller, total liability for breach of these Terms and Conditions or breach of the Seller, contractual obligations or duties at law or in equity (howsoever arising) is limited at the option of the Seller,
(a) the replacement or rectification of the Services or the supply of equivalent Services;
(b) the payment of the cost of replacing the Services; or
7.7 If the Seller, obtains goods or services from a third party in order to carry out the Customer’s instructions or complete an Order:
(a) the Seller, will not be liable for any breach of these Terms and Conditions if that breach is as a result or is connected with the supply by a third party of such services;
(b) the Seller, acquire such services as agent for the Customer, not as principal and will have no liability to the Customer in relation to the supply of these services;
(c) any claim by the Customer in relation to the supply of such services must be made directly against that third party; and
(d) the Customer must pay for such goods or services and the Seller, will give the Customer notice of any such third party charges as applicable.
8. STATUTORY RIGHTS
8.1 ACL rights: In circumstances where the Customer is acquiring Services from the Seller, as a ‘consumer’ for the purposes of (and as defined in section 3 of Schedule 2) the ACL, the Seller, acknowledges and agrees that certain statutory guarantees and rights shall apply to the customer as provided by relevant laws but subject to these Terms and Conditions as applicable and where permitted by relevant laws.
8.2 No restriction: Nothing in these Terms and Conditions excludes, restricts or modifies any condition, warranty, statutory guarantee, right or remedy implied or imposed by common law, statute or regulation which cannot be lawfully excluded, restricted or modified, which may include the ACL and corresponding provisions and relevant laws of State or Territory legislation containing implied terms and/or statutory guarantees which operate to protect the Customers of goods and services in various circumstances.
8.3 Unfair contract: If section 23 of the ACL applies to any provisions in these Terms and Conditions, any such provision(s) shall be void to the extent it is unfair within the meaning of section 24 of the ACL.
9. INTELLECTUAL PROPERTY
9.1 If the Customer provides the Seller, with Material to be used in the supply of the Services:
(a) the Customer warrants and represents to the Seller, that any Services supplied to the Customer based on the Material the Customer provides to the Seller, will not infringe the Intellectual Property Rights of any third party; and
(b) the Customer indemnifies and will keep them indemnified from and against any and all claims, liabilities, obligations, expenses or damages which the Seller, may suffer or incur as a result or in connection with the representation or warranty in clause 9.1(a) being untrue or breached.
9.2 The Customer grants to the Seller, a non-exclusive royalty-free license throughout the universe to use all Intellectual Property Rights in all Materials for so long as necessary or convenient for the production of the Services and the matters contemplated in relation to the delivery of the relevant Services.
9.3 All Intellectual Property Rights in and relating to the production, development and supply of the Services (excluding Materials licensed to the Seller, pursuant to clause 9.2) will remain the Seller, property and will not be disclosed to any other person by the customer without our prior written consent.
9.4 The customer shall keep confidential and shall not use any confidential information communicated by the Seller, to the Customer without our prior written consent.
10.1 Unless otherwise agreed, prices with respect to any taxable supply are exclusive of GST.
10.2 The Customer must pay to the Seller, all GST in addition to any other amounts payable by the customer to the Seller, which will be payable by the Customer when required to pay for the Services.
10.3 The Seller, will issue a tax invoice for any taxable supply to the customer, which will enable the customer, if permitted by the GST Law, to claim a credit for GST paid by the customer.
10.4 If GST is payable for a taxable supply by a third party, the Seller, will request that party to provide the customer with a tax invoice.
10.5 Prices for imported goods are to be converted into Australian dollars based on the Reserve Bank Exchange Rate on the date that such goods are ordered.
11. DISPUTE RESOLUTION
11.1 A party must not start court proceedings in respect of a Dispute unless it has complied with this clause 11.
11.2 A party claiming that a Dispute has arisen must notify each other party to the Dispute giving details of the Dispute.
11.3 During the Initial Period after a notice is given under clause 11.2 each Disputant must authorise a representative to use their best efforts to resolve the Dispute.
11.4 If, in relation to a Dispute, a Disputant breaches any provision of clauses 11.1 to 11.3, each other Disputant need not comply with clauses 11.1 to 11.3 in relation to that Dispute.
12.1 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 the customer (in the case of the Customer) and as a service provider (in the case of the Seller,) in respect of the Services on the terms in this 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.
12.2 It is expressly agreed that nothing in this Agreement will give rise to any fiduciary relationship between the Customer and the Seller, and neither Party owes any fiduciary duty to the other in respect of its conduct.
This Agreement may only be varied in writing signed by both the Parties.
(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.
(a) All Notices 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 set out on the client profile.
(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 a 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.
13.4 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.
13.5 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;
(f) shortage of supplies, equipment, and materials;
(g) strikes and lockouts;
(h) civil unrest; or
(i) malicious damage.
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.
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.
13.8 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.
13.9 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.