1. DEFINITIONS AND INTERPRETATIONS
In the interpretation of these terms and conditions, words importing the singular will include the plural and vice versa; words importing any one gender will include other genders; words importing natural person will include corporations, firms, government departments, statutory authorities, and other entities recognised by law and vice versa; all references in these terms and conditions to any statutory enactment or law will mean and be construed as references to that enactment or law as amended or modified or re-enacted from time to time and to the corresponding provisions of any similar enactment or law of any relevant jurisdiction; if more than one person is named and described as the Service Provider the obligations of those persons under these terms and conditions will be joint and several.
Buyer means the third party person or business who uses the Services of the Company to locate and engage with Service Providers.
Company means Neo RD&C Pty Ltd t/as ICertify ABN 35 601 279 565 and includes its successors and assigns.
Enquiry/ies means a request for services or subscription entered by a Service Provider, with the Company, for the Provision of the Services.
Other Relevant Requirements means the requirements of all codes, standards, industry requirements, regulations, legislation, by-laws, ordinances, common law and other laws applying to the production, sale, use and consumption of the Goods and the supply of the Services.
Services means the provision of marketing, promotion and/or referral services by the Company, on behalf of and for the benefit of the Service Provider
Service Provider means a person or company who has engaged with the Company to assist in the offering of their goods or services to Buyer/s. Website means the Company’s website i.e. www.icertify.net.au
2. SALE AND PURCHASE OF SERVICES
2.1 These terms and conditions apply to all Enquiries placed by a Service Provider with the Company.
2.2 Any Enquiry made by the Service Provider is not binding on the Company until accepted by the Company in writing. A contract will be formed upon the written acceptance by the Company of an Enquiryfor the Services by the Service Provider.
2.3 The Service Provider acknowledges that it will be bound by these Conditions which will form part of the contract. The contract may only be varied with the Company’s prior written
consent. To the extent any conflict exists between these Conditions and any other documentation or correspondence forming part of the contract, these Conditions are paramount and prevail.
2.4 The Company agrees to supply and the Service Provider agrees to purchase the services specified on the Enquiry, upon and subject to the terms and conditions set out in these terms and conditions of sale.
2.5 The Company reserves the right to accept in whole or in part or reject any Enquiry submitted by the Service Provider to purchase Services.
2.6 In the course of providing the Services, the Company may offer features based on the location of Service Provider’s and their current location. Where the usage of Location-Based Services is applicable, you consent to the collection and dissemination of your location information through the Services. Under no circumstances shall the Company be liable for claims or for any damages therefrom, arising out of the Service Provider’s informed decision to disseminate its location information together with the Service Provider’s profile information through the Services.
3.1 Unless otherwise specified on any invoice and/or statement of account issued by the Company, payment of the price specified on the invoice (‘Price’) will be made in full by the Service Provider to the Company at the time that the Enquiry is made
3.2 Unless expressly stipulated by the Company to be a fixed price, the quoted price is subject to variation to take account of variations to the instructions and scope of the Enquiry. The Company may adjust the quoted price, to the extent of such variation, and the revised price will be payable as if it were the original quoted price.
3.3 Any agreed revised price will be invoiced to the Service Provider and is payable within 7 business days. Only once payment is received and acknowledged by the Company will any revisions be made live.
3.4 If the quoted or revised price is not paid in full pursuant to clause 3.1, the Service Provider will pay to the Company on demand interest computed on the unpaid amount of the price calculated from the date of delivery of the Services to the date on which the quoted or revised price is paid in full at the rate of 2% per month.
3.5 If the Service Provider otherwise defaults in payment or breaches these Conditions then it will be liable for all costs incurred by the Company and will indemnify the Company against any loss, liability, charge, expense, outgoing or payment which it suffers, incurs or is liable for in respect of the recovery of monies owing by the Service Provider.
4. DELIVERY OF SERVICES
4.1 Subject to clause 4.2, the Company will use reasonable endeavours to deliver the Services to the Service Provider on or before the delivery date specified on the Enquiry (if any) but otherwise as notified by the Company to the Service Provider (‘Delivery Date’).
4.2 The Company reserves the right to withhold deliveries if the Company, in its sole discretion, considers that the financial condition of the Service Provider so warrants and that such action is advisable to protect the Company’s interests; or
(a) the terms of payment for any Services are not strictly adhered to by the Service Provider.
4.3 If the Company is unable by reason of industrial dispute or by reason of shortages of material or labour, shipping delays, war, riot, pandemic, virus, act of God or any other case whatsoever beyond the reasonable control of the Company (‘Force Majeure Event’), to deliver the Services to the Service Provider on or before the Delivery Date, then the Company will have the option:
(a) to deliver the Services to the Service Provider after cessation of any Force Majeure Event and in this case these terms and conditions will have full force and effect as though the Services had been delivered on or before the Delivery Date; or
(b) without prejudice to its other rights, to rescind these terms and conditions and in this case the Service Provider will have no recourse, claims or actions whatsoever against the Company except for a refund of any part of the price paid in respect of the Services.
4.4 The Service Provider acknowledges that the Company does not warrant or represent that the Services will be delivered on the Delivery Date, and failure to deliver by the Delivery Date will not avoid or give the Service Provider the right to avoid any contract or render the Company liable in any way for any direct or consequential loss arising from such failure and that the Company is at liability to make deliveries within a reasonable period before or after the Delivery Date.
4.5 The Service Provider agrees that if it fails or refuses to take delivery of the Services on or before the Delivery Date or within 7 business days of the Delivery Date, then all monies paid to the Company will be forfeited to the Company and the Company may (without prejudice to its other rights) terminate the contract.
5. LIMITATION OF CLAIMS
5.1 The Service Provider acknowledges that it has not, in acquiring the Services for any particular purpose, relied upon the skill, judgment or recommendations of the Company or any of its servants or agents.
5.2 Any claims by the Service Provider in respect of the Services must be notified in writing by the Service Provider to the Company within 7 days of the Delivery Date, and if not notified, the Service Provider forever releases and discharges the Company from all actions, suits, charges, claims and demands relating directly or indirectly to the purchase by the Service Provider from the Company of the Services
6. REFUNDS / CREDITS
6.1 No refunds or credit will be offered unless in accordance with a written agreement between the Service Provider and the Company. Without limiting the foregoing, in no case will the Company provide any refund or credit where the Enquiry initially made by the Service Provider was incomplete and alteration was later sought, nor where the outcome of the Services varies from any expectation of the Service Provider.
6.2 Without limiting the generality of the foregoing, the Company and the Service Provider agree that, to the fullest extent permitted by law, the Service Provider will not be entitled, in any circumstances, to a refund or credit where the Company has otherwise acquired and/or provided the scope of the Enquiry at specific effort and expense, unique to the Service Provider.
6.3 Clauses 6.1 and 6.2 apply in so far as they do not breach any consumer guarantees as stipulated by the Australian Competition and Consumer Commission, and detailed in clause 7 below.
7. LIABILITY AND INDEMNITY
7.1 The Company’s services come with guarantees that cannot be excluded under the Australian Consumer Law. For major failures with the Service provided, the Service Provider is entitled:
1. to cancel the service contract; and
2. to a refund for the unused portion, or to compensation for its reduced value.
7.2 The Company otherwise acknowledges that under applicable State, Territory and Commonwealth Laws including in particular the Goods Act (VIC) 1958 and/or similar Australian Consumer Laws, further conditions and warranties may be implied into this contract and rights may be conferred upon the Service Provider which cannot be excluded, restricted or modified. Nothing of this contract whether express or implied, will be taken to exclude, restrict or modify any such non-excludable conditions, warranties or rights. In particular the Service Provider is entitled to
7.3 Subject to clause 7.1, the Service Provider acknowledges and expressly agrees with the Company:
(a) that the Service Provider is satisfied that the Services are fit for the purpose for which they were purchased; and
(b) that any implied warranty or condition whether statutory or otherwise and whether as to quality, condition or fitness for any particular purpose is expressly excluded from these terms and conditions to the fullest extent permitted by law.
7.4 The Service Provider agrees and acknowledges that the Company to the full extent permitted by law accepts no liability or responsibility arising from any direct or consequential loss, damage or expense of any kind or nature and the Service Provider r releases and forever discharges the Company from all such responsibilities and liabilities and any claims, demands or causes of action in respect thereof.
7.5 The Service Provider will, to the full extent permitted by law indemnify and keep indemnified the Company against all actions, proceedings, claims or demands for loss or damage of whatsoever nature made or threatened against the Company by any third party or by any of the Service Provider’s employees, agents or contractors arising directly or indirectly out of or in respect of the use, custody or purchase and supply of the Services
7.6 If the Company accepts liability for a claim or is held liable by a court of competent jurisdiction for a breach of conditions or warranty implied by statute and not negated pursuant to these terms and conditions, any liability for such breach will be limited at the Company’s option to
rectify the Services provided and/or the payment of the value of the Services or their replacement cost.
8. INTELLECTUAL PROPERTY
8.1 Until the Service Provider has paid the quoted or revised price and any moneys outstanding pursuant to this contract or any other contract between the Company and the Service Provider in full, all intellectual property supplied pursuant to the Enquiry and Services, under this or any other contract between the Company and the Service Provider will remain the property of the Company.
8.2 Only the Company (and its licensors, where applicable) shall own the right, title and interest, including all related Intellectual Property Rights, in and to the Website, the Company Content, the Services and any derivatives, suggestions, ideas, enhancements, feedback, recommendations or other information provided by you or any other party relating to the Service, along with any aggregated metrics, data and trends compiled by the Company. These Terms and Conditions do not convey any rights of ownership in or related to the Services, the Company technology or the Intellectual Property Rights claimed by the Company including but not limited to the name, logo, trademarks, copyright content, designs and patents.
8.3 The Service Provider agrees not to change, translate or otherwise create derivative/copied works of the Website or the Services offered.
8.4 The Service Provider agrees that the Company may use any feedback, ideas or suggestions received, without any restriction or obligation to the Service Provider, even after cancellation of Services provided. This Section does not limit or affect any rights the Service Provider may have under applicable data protection laws.
8.5 The Company may provide information, training material, templates or other products featuring demo content, including without limitation text, photos, images, graphics, audio and video to provide the Service Provider with an idea of the manner by which the platform functions and the Services on offer and unless advised to the contrary the Service Provider may not distribute, publicly display, publicly perform or otherwise publish such content.
9.3 You agree that the Company may protect and improve our Services through analysis of your use of the Services and/or analysis of any information you enter into our Service in an anonymised, pseudonymised, de-personalised and/or aggregated form.
10. GOODS AND SERVICES TAX
10.1 For the purposes of this clause 10:
(a) ‘Price Payment’ means any payment of the Price (whether quoted or revised pursuant to clause 3.2) or other amount payable by the Service Provider to the Company under these Terms and Conditions in respect of or in connection with any Supply made or provided by the Company which is Taxable Supply, but does not include any payment under clause 10.3;
(b) ‘GST Act’ means the Act A New Tax System (Goods and Services Tax) Act 1999;
(c) ‘GST Rate means the GST rate from time to time provided for in the A New Tax System (Goods and Services Tax Imposition – General) Act 1999, and
(d) The terms ‘Consideration’, ‘GST’, ‘GST Law’, ‘Input Tax Credit’, ‘Taxable Supply’, ‘Tax Invoice’ and ‘Tax Period’ have the meaning given by section 195-1 of the GST Act.
10.2 Any Price Payment is exclusive of GST.
10.3 In addition to each Price Payment, the Service Provider must pay to the Company an amount equal to each Price Payment multiplied by the GST Rate, such additional amount to be paid at the same time and in the same manner as the Service Provider is required to pay the relevant Price Payment.
10.4 The Company must provide a valid Tax Invoice (or any other documentation enabling Input Tax Credits to be claimed by the Service Provider) to the Service Provider no later than seven (7) days after the occurrence of any event that causes the GST liability of the Company on any Taxable Supply made to the Service Provider under these terms and conditions to be attributed to a particular Tax Period.
11.1 An Enquiry made by the Service Provider and accepted by the Company cannot be cancelled without the Company’s prior written consent (in its sole discretion).
11.2 No application for cancellation or delay in delivery will be considered unless made by the Service Provider in writing to the Company
11.3 The Company will consider an application for cancellation or delay in delivery in its sole discretion.
11.4 Without prejudice to any of its other rights, powers or remedies, the Company may cancel any Enquiry for the delivery of Services and terminate any contract governed by these Conditions if:
(a) the terms of payment for any Services delivered to the Service Provider by the Service Provider have not been strictly adhered to by the Service Provider;
(b) the Service Provider defaults under any of its obligations under these Conditions; or
(c) the Service Provider becomes insolvent, commits an act of bankruptcy or, being a company, a liquidator, provisional liquidator, receiver, receiver and manager, administrator or official manager is appointed in respect of the Buyer, a mortgagee
goes into possession of the Buyer’s assets or business, an application is made to appoint a liquidator or to have the company wound up, the Buyer is made subject to the supervision of a court or enters into a scheme of arrangement with its creditors or if anything analogous occurs in respect of the Buyer, in which case, the Seller will be released from all liability under the Contract.
11.5 In the instance that the Company cancels the Enquiry for a reason as provided in 11.4, it will be entitled to payment for all Services delivered up to the effective date of the cancellation.
12. TECHNICAL IMPROVEMENTS
The Company reserves the right to make changes and other improvements to the Services without prior notice.
The failure of the Company at any time to insist on performance of any of these terms and conditions is not a waiver of the rights of the Company at any time to insist on performance of that or any other provision.
If any provision of these terms and conditions is or is found to be invalid or unenforceable, that invalidity or unenforceability will not affect the validity or enforceability of the other provisions of these terms and conditions and these other provisions will remain in full force and effect.
15. WHOLE UNDERSTANDING
These terms and conditions contain the entire agreement and understanding between the Company and the Service Provider and the contract arising therefrom will not be amended, varied or waived unless such amendment, variation or waiver is in writing signed by the Service Provider and by a person authorised to sign such amendment, variation or waiver on behalf of the Company.
16. GOVERNING LAW
These terms and conditions will be governed by and construed in accordance with the law in force in Victoria, Australia and the Service Provider and the Company agree to submit to the jurisdiction of the Victorian Courts in respect of any dispute arising in connection with this contract.