IMPORTANT: THE FOLLOWING TERMS AND CONDITIONS (“THE TERMS”) CONSTITUTE A LEGAL AND ENFORCEABLE AGREEMENT BETWEEN CLEAR GROUP AUSTRALIA PTY LTD (“CLEAR GROUP”) AND YOU IN ORDER TO PROVIDE YOU WITH THE SERVICES DESCRIBED IN THESE TERMS. IF YOU DO NOT AGREE TO THESE TERMS, THEN CLEAR GROUP IS UNABLE TO PROVIDE THE SERVICES TO YOU, IN WHICH CASE YOU SHOULD ADVISE CLEAR GROUP OF YOUR REFUSAL. YOU ARE DEEMED TO HAVE ACCEPTED THESE TERMS AND CONDITIONS IF YOU INSTRUCT CLEAR GROUP TO PROVIDE THE SERVICES TO YOU AFTER RECEIPT OF THESE TERMS.
CLEAR GROUP and You agree as follows:
In this agreement:
Agreement means this agreement together with any changes to this agreement that have been agreed to in writing between the Parties;
Business Day means any day on which banks are open for general banking business in Victoria (other than a Saturday, Sunday or public holiday);
Charges mean all charges associated with the provision of the Services including the pricing details in Annexure 1;
Commencement Date means the date set out in item 1 of Schedule 1;
Confidential Information means the terms of this Agreement and any information of whatever nature and in whatever form concerning the operations, dealings, organisation, personnel, business strategies, intellectual property or know-how of a party which is received by the other party pursuant to or in connection with this Agreement;
Emergency Outages means those outages that occur for Clear Group to undertake essential and emergency maintenance work on the hosted network;
GST Law means the A New Tax System (Goods and Services Tax) Act 1999 (Cth), or any other Act which imposes a goods and services tax in Australia;
Initial Term means the initial term of this Agreement specified in item 2 of the Schedule.
Interest Rate means, at a particular date, 3 per cent above the rate specified from time to time under the Penalty Interest Rates Act (Vic);
Loss means any loss including any liability (whether actual, contingent or prospective), cost, expense, claim, proceeding, action, demand or damage of whatever nature or description irrespective of when the acts, events or things giving rise to the liability occurred.
Parties means Clear Group and You and party means either of them;
Planned Outage means a period of time, as reasonably determined by Clear Group, that Clear Group may interrupt supply of the Services to You for routine maintenance, upgrading or other activities, after giving the You reasonable notice;
Renewal Period means the renewal period specified in item 3 of the Schedule;
Term means the term of this Agreement determined in accordance with clause 5; and
You means the person or entity receiving the supply of the Services from Clear Group. You and Your have a corresponding meaning.
In this agreement, unless the context otherwise requires:
(a) reference to any statute or to any statutory provision includes any statutory modification or re-enactment of it and any statutory provision substituted for it, and all ordinances, by-laws, regulations, rules and statutory instruments (however described) issued under it;
(b) reference to a person includes an individual, the estate of an individual, a corporation, joint venture, association, government body, firm, partnership and any other entity;
(c) reference to a party includes that party’s personal representatives, successors and permitted assignees;
(d) a provision must not be construed against a party only because that party prepared it;
(e) a provision must be read down to the extent necessary to be valid. If it cannot be read down to that extent, it must be severed;
(f) if a thing is to be done on a day which is not a Business Day, it must be done on the Business Day before that day;
(g) an expression defined in the Corporations Act 2001 (Cth) or GST Law has the meaning given by the relevant Act at the date of this Agreement;
(h) the word “includes” in any form is not a word of limitation; and
(i) a reference to “$” or “dollar” is to Australian currency.
3 SCOPE OF SERVICES
Pursuant to the terms of this Agreement and subject to their selection by the Client, Clear Group will supply to the Client those services set out in Annexure 1 (“the Services”) that the Client has selected from the range of Services set out in that Annexure. The Services will not be available in circumstances where there is a Planned Outage or an Emergency Outage.
4 PRICE AND PAYMENT
4.1 You will pay Clear Group for the provision of the Services at the price and on the payment terms set out in Annexure 1.
4.2 You must pay the price and all associated charges for the Services by direct debit, cash or cheque and without set-off, counterclaim or deduction. Payments by credit card and direct debit may incur an additional processing fee equal to any fees Clear Group incurs for processing Your credit card or direct debit payment.
4.3 You must pay all Charges without deduction or demand within 7 days of receiving an invoice from Clear Group.
4.4 If payment is not received by the due date for payment, You must pay interest on the outstanding amount at the Interest Rate, which shall accrue daily from the due date for payment until the actual date of payment to Clear Group.
4.5 If payment is not made within 30 days after receipt of an invoice from Clear Group, then Clear Group without incurring any liability to You and without notice to You will, at its sole discretion, suspend the provision of the Services to You.
5 TERM AND RENEWAL PERIODS
5.1 This Agreement commences on the Commencement Date and continues for the Initial Term unless terminated or extended in accordance with this Agreement.
5.2 This Agreement will be renewed automatically for successive periods equal to the Renewal Period unless:
(a) either party gives at least 1 month’s notice prior to the expiry of the Initial Period or a Renewal Period (as the case may be) that it does not wish to renew the Agreement; or
(b) the Agreement is terminated in accordance with this Agreement.
5.3 Clear Group will notify You of any changes to the Charges for any Renewal Period before the commencement of the Renewal Period.
5.4 On renewal, this Agreement will be amended to remove one of the Renewal Periods if more than one applies.
6.1 Either party may terminate the Term immediately upon the occurrence of any of the following events:
(a) the other party fails to observe or perform any provision of this Agreement and fails to remedy such breach within (30) days after written notice has been given to the party in breach;
(b) the other party commits any act of bankruptcy or insolvency or a petition is presented for the bankruptcy or winding up of the other or a resolution is passed for the winding up of the other otherwise than for the purpose of amalgamation or reconstruction;
(c) the other enters a compromise or arrangement with creditors or an external administrator is appointed to the other or any of its assets;
(d) the written agreement between the parties; and
(e) a party giving to the other party six months notice in writing of termination.
Clear Group may terminate this Agreement if You commit multiple or recurring breaches of this Agreement whether or not remedied.
6.2 In the event that the Term is terminated then:
(a) Your outstanding obligations will survive termination;
(b) each party will retain its rights under this Agreement and at law in respect of any breach of this Agreement by the other party;
(c) a party shall have no claim against the other party for any consequential, incidental or other special damages as a result of any breach or termination of this Agreement by the other party.
7 CLAUSES SURVIVE END OF AGREEMENT
The following clauses will survive the expiration or termination of this agreement:
(a) Clause 8 (Confidentiality); and
(b) Clause 10 (Liability).
8.1 A party shall not, without the prior written approval of the other party:
(a) disclose the other party’s Confidential Information to any third party; or
(b) use the other party’s Confidential Information for any purpose other than for the performance of obligations under this Agreement.
8.2 Each party must take all reasonable steps to ensure that its officers, employees, agents and subcontractors do not make public or disclose the other party’s Confidential Information.
8.3 A party shall not be in breach of clause 8.1 in circumstances where it is legally compelled to disclose the other party’s Confidential Information, or where the Confidential Information in question has entered the public domain other than as a result of a breach of this Agreement. A party may also disclose the terms of this Agreement (other than Confidential Information of a technical nature) to its solicitors, auditors, insurers and accountants, and shall ensure that every person to whom that disclosure is made uses that information solely for the purpose for advising or reporting to that party.
8.4 Each party agrees to return to the other party (or if necessary erase) immediately upon request, and upon termination of this Agreement, any document or other media (including disks and magnetic tape) containing Confidential Information of that other party.
You warrant and represent to Clear Group that You have the legal right and power to enter into this Agreement and to complete the transactions contemplated by this Agreement;
You will be liable for and continually indemnify Clear Group against all Loss suffered or incurred by Clear Group as a result of a breach of this Agreement by You, or anything that You or Your employees, agents or representatives do or fail to do under or in connection with this Agreement.
11 LIMITATION OF LIABILITY
(a) Subject to clause 11(b), Clear Group will not be under any liability to You in respect of any loss or damage (including consequential loss) however caused (whether by negligence or otherwise) which may be suffered or incurred or which may arise directly or indirectly in respect of the supply of the Services pursuant to this Agreement or the failure or omission of Clear Group to comply with its obligations under this Agreement, including any loss or damage suffered by You or any other person as a result of an inability to supply or a delay in supply of the Services.
(b) If any applicable law or statute implies any terms or imposes any liability on Clear Group which cannot lawfully be excluded under this Agreement:
(i) such terms are included in or, as the case may require, such liability is not excluded by, this Agreement; and
(ii) the liability of Clear Group for a breach of such terms or, as the case may be, such liability will be limited, at Clear Group’s option, in any one or more of the ways permitted under such law or statute including, where so permitted:
(A) if the breach relates to goods:
(1) the replacement of those goods or the supply of equivalent goods;
(2) the repair of those goods;
(3) the payment of the cost of replacing those goods or acquiring equivalent goods; or
(4) the payment of the cost of having those goods repaired; and
(B) if the breach relates to services:
(1) the supplying of those services again; or
(2) the payment of the cost of having those services supplied again.
(C) Without limiting clause 11(b), the liability of Clear Group under or in relation to this Agreement shall be limited to direct damages which shall not exceed the amount paid to Clear Group for the supply of the Services that give rise to the damages. In no event will Clear Group be liable for incidental, special, or consequential damages (including lost profits) suffered by You, even if Clear Group has previously been advised of the possibility of damages.
12 DISPUTE RESOLUTION
12.1 If a dispute arises in connection with this Agreement, a disputant may give the other disputant a notice specifying the dispute.
12.2 Within five (5) Business Days after the notice is given, the disputants (each represented by its chief executive officer or other person authorised by the disputant to bind it in connection with the dispute) must confer to resolve the dispute or to decide the method of resolving the dispute.
12.3 Unless the disputants otherwise agree, the dispute must be referred to mediation if not resolved within fifteen (15) Business Days after the notice is given.
12.4 The disputants must appoint a mediator within twenty (20) Business Days after the notice is given. If they fail to agree, the mediator must be nominated by the then current President of the Law Institute of Victoria or nominee. The mediation must be conducted in Melbourne, Australia in accordance with The Institute of Arbitrators & Mediators Australia Mediation and Conciliation Rules.
12.5 The mediator assists in negotiating a resolution of the dispute. The mediator may not make a decision binding on the disputants, unless the disputants have so agreed in writing.
12.6 The mediation ends if the dispute is not resolved within 20 Business Days after the mediator’s appointment.
12.7 Each disputant must keep confidential:
(a) any information or documents disclosed in the course of the mediation;
(b) any discussions between the disputants in the course of the mediation.
12.8 Unless disclosure is required by law:
(a) each disputant must keep confidential all information about the existence, conduct, status or outcomes of the mediation and the terms of any mediation settlement agreement;
(b) this information and these terms may be published or announced only with the consent of the disputants and in terms agreed by them in writing.
12.9 The dispute resolution process does not affect any party’s obligations under this Agreement.
12.10 Neither disputant may commence court proceedings in respect of the dispute until the mediation period ends. This does not affect a disputant’s right to seek injunctive or urgent declaratory relief.
12.11 Each disputant must pay its own costs in respect of the dispute resolution process. The disputants must pay in equal shares the mediator’s costs and the costs of third party reports and enquiries requested by the mediator.
13 FORCE MAJEURE
Notwithstanding any other provision in this Agreement, no default, delay or failure to perform on the part of either party may be considered a breach of this Agreement if such default, delay or failure to perform is shown to be due entirely to causes beyond the reasonable control of the party charged with such default including, but not limited to, causes such as strikes, lock-outs or other labour disputes, riots, civil disturbances, actions or inaction of governmental authorities or suppliers, epidemics, wars, embargoes, storms, floods, fires, earthquakes, acts of God, nuclear disasters, telecommunication interruptions or inadequacy (e.g. bad line conditions or electrical noise), default by a telecommunication service provider, or default of a common carrier. Those obligations of a party which cannot be performed due to force majeure, and only those obligations, will be suspended during the continuance of the force majeure event PROVIDED HOWEVER that the party excused from performance for force majeure must exercise all due diligence to overcome the inability.
14 ENTIRE AGREEMENT
14.1 This document records the entire agreement between the Parties about its subject matter.
14.2 The Parties exclude all terms implied by law, where possible.
14.3 Neither party has given any warranty or made any representation to the other party about the subject matter of this Agreement, other than those warranties and representations appearing in this document.
15.1 All defined terms in this clause are sourced from GST Law.
15.2 All Payments and calculations are exclusive of GST.
15.3 A Recipient must pay to the Supplier any GST payable on a Taxable Supply. The Recipient must pay the GST when the Payment becomes payable or when the Supplier issues a Tax Invoice, whichever is later.
15.4 If a party (claimant) acquires a Taxable Supply for which it is entitled to reimbursement by the other party, the reimbursement amount is reduced by the Input Tax Credit to which the claimant is entitled.
15.5 The Supplier must issue an Adjustment Notice immediately it becomes aware of an Adjustment Event in respect of a Taxable Supply. Within seven (7) days after the Supplier issues an Adjustment Note:
(a) the Recipient must pay the Supplier any increase in the GST Amount;
(b) the Supplier must pay the Recipient any decrease in the GST Amount.
(a) one party (payer) must pay a GST Amount;
(b) a penalty, interest or additional tax (extra liability) is imposed in respect of the GST Amount because of default of another party (defaulter); and
(c) the payer provides to the defaulter proof of the extra liability;
the defaulter must pay the amount of the extra liability to the payer within 14 days after the payer provides that proof to the defaulter.
16 RELATIONSHIP BETWEEN THE PARTIES
Nothing in this Agreement constitutes any party as partner, agent, employee or joint venturer of the other party, nor entitles any party to represent to any third party that it is partner, agent, employee or joint venturer of the other party.
17.1 Clear Group may, at any time upon notice to You, assign all its rights and obligations under this Agreement.
17.2 You may not assign, novate or otherwise transfer or encumber any of Your rights or obligations under this Agreement without the prior written consent of Clear Group.
18.1 Notice must be in writing and in English, and may be given by an authorised representative of the sender.
18.2 Notice may be given to a person:
(b) by leaving it at the person’s address last notified;
(c) by sending it by prepaid mail to the person’s address last notified;
(d) by sending it by facsimile to the person’s facsimile number last notified and then confirming it by prepaid mail to the person’s address last notified.
18.3 Notice is deemed to be received by a person:
(a) when left at the person’s address;
(b) if sent by prepaid mail, three (3) Business Days after posting;
(c) if sent by facsimile and confirmed by pre paid mail, at the time and on the day shown in the sender’s transmission report, if it shows that the whole notice was sent to the person’s facsimile number last notified.
However, if the notice is deemed to be received on a day which is not a Business Day or after 5pm, it is deemed to be received at 9am on the next Business Day.
18.4 If two or more people comprise a party, notice to one is effective notice to all.
If any provision of this Agreement is held invalid, unenforceable or illegal for any reason, this Agreement shall remain otherwise in full force apart from such provision, which will be deemed to be deleted.
20 NO RELIANCE
(a) Each party acknowledges that no party (nor any person acting on its behalf) has made any representation or other inducement to it to enter into this Agreement, except for the representations or inducements expressly set out in this Agreement;
(b) Each party acknowledges and confirms that it does not enter into this Agreement in reliance on any representation or inducement by or on behalf of any other party, except for any representation or inducement expressly set out in this Agreement.
21 FURTHER ACTION
21.1 Each party must do all things necessary to carry out this Agreement, including:
(a) executing documents; and
(b) ensuring its employees and agents perform their obligations.
21.2 A party must not do anything that will prevent this Agreement from being carried out.
22 NO WAIVER
22.1 A party may only waive a breach of this Agreement in writing signed by that party or its authorised representative.
22.2 A waiver is limited to the instance referred to in writing (or if no instance is referred to in writing, to past breaches).
This Agreement may only be amended in writing signed by the Parties.
24 CUMULATIVE RIGHTS
The rights and remedies provided in this Agreement are cumulative and do not affect any rights or remedies provided by law.
25 GOVERNING LAW
25.1 This Agreement is governed by the law of Victoria.
25.2 The Parties irrevocably submit to the exclusive jurisdiction of the courts of Victoria and the Federal Court of Australia in that jurisdiction, and the courts of appeal from them.
25.3 No party may object to the jurisdiction of any of those courts on the ground that it is an inconvenient forum or that it does not have jurisdiction.
|Item 1||Commencement Date||On and from the date the Services are first supplied to You by Clear Group|
|Item 2||Initial Term||12 month from the abovementioned dates|
|Item 3||Renewal Period||A period of 12 months which commences immediately after the Initial Period|
CLEAR GROUP agrees to provide You with the Services selected by You:
Monthly Fee (excl GST)
Quarterly Fee (excl GST)
Annual Fee (excl GST)
|Hosting Plan A Management
|Hosting Plan B Management
|Hosting Plan C Management
|Domain Parking Only||
|Weekly website management and updates
(This is required on all websites hosted by CLEAR GROUP)
|Online Booking System Licensing and Management||
|Online Shopping Cart System Licensing and Management||
|Xero Accounting Integration Licensing and Management
(does not include Xero subscription fees)
|Static IP Address (each)||
|SSL Certificate Management
|Domain Name and Management (.com/.net/.au)||
$110 per 2 years
|Item 1||Works for excluded support items||$200 per hour exclusive of GST|
|Item 2||Travel for time above 15 minutes to and from||$150.00 per hour exclusive of GST|
|Item 3||Accommodation and travel expenses (eg.airfare expenses)||to be confirmed and accepted by You prior to those expenses being incurred by Clear Group|
|Item 4||Parking||equal to the parking rate charged to Clear Group by the parking operator|
|Item 5||Additional disbursements||to be confirmed and accepted by You prior to them being incurred by Clear Group (when necessary)|