To the fullest extent legally permissible all dealings between each customer (including all related and/or associated companies and/or other entities, all successors and/or assigns and in the customer’s own capacity and as trustee of each and every trust of which the customer is trustee) [jointly “the Customer”] and Infusion121 Pty Ltd ACN 606 214 591 (and/or any successors and/or assigns) whether trading as “Infusion121” and/or otherwise [“Infusion121”] relating to any and all services [the “services”] are subject to the following terms and conditions [“these Terms”] unless otherwise expressly agreed in writing:
1. Payment:
Payment shall be made by cheque, direct deposit, electronic bank transfer or credit card (credit card transactions will be accepted at the discretion of Infusion121), without deduction and within the payment period stipulated in the relevant quote, agreement, invoice or statement. If no credit period is stipulated, payment shall be made within 30 days from the date of invoice.
2. Interest:
Interest shall be charged on overdue accounts at the current Penalty Interest Rates Act 1983 (Vic.) interest rate plus 2%.
3. Price and Services:
a) The price for the services are as detailed in any quote or agreement from Infusion121.
b) Prices exclude all government imposts, levies and duties (including any GST or equivalent), which shall be invoiced to the Customer.
c) In the absence of any binding quotation, order or agreement, all supply is made at the price nominated by Infusion121 at the time of delivery.
d) The services to be provided by Infusion121 are those detailed in any quote or agreement.
e) Any services not included in any quote or agreement, including any revision/s out of scope [“Exclusions”] are not included in the price. Any Exclusions provided to the Customer shall be invoiced to the Customer at Infusion121’s usual rates.
4. Quotations and Orders:
The Customer agrees that: a) quotations must be in writing; b) Infusion121 shall not be bound by any quotation if an order is not placed within 14 days from the date of quotation; and c) Infusion121 may prior to receipt of any order amend any quotation and notify the Customer accordingly without ramification.
5. Delivery of Services:
a) Infusion121 may suspend, withhold or cancel supply (including but not limited to any website or application hosting) where: (i) the Customer is in breach of these Terms, (ii) the Customer has delayed or failed to comply or deliver any of its obligation or deliverables under any quote or agreement; and/or (iii) Infusion121 has any occupational health and/or safety concerns.
b) The Customer agrees that:
(i) Infusion 121 will attempt to meet any commencement, milestone or completion dates given by Infusions 121 and/or any Performance Obligations in any quote or agreement but accepts no liability if any of those dates or obligations are not met;
(ii) Infusion121 shall not be liable for any delay, failure or inability to deliver any service;
(iii) it will pay for so much of any services as Infusion121 invoices from time to time; (iv) no delay or failure to fulfil any part of any quote, order or agreement shall entitle the Customer to cancel or vary any order or delay or reduce any payment.
6. Cancellations:
The Customer agrees:
a) not to cancel any order or agreement without Infusion121’s prior approval;
b) to indemnify Infusion121 against any and all loss suffered as a result of any cancellation.
7. Monthly Support Package:
a) This clause applies if the Customer has engaged Infusion121 to provide ongoing monthly support.
b) These Terms apply to ongoing monthly support but this clause 7 prevails to the extent of any inconsistency.
c) The services included in the ongoing monthly support are those detailed in any quote or agreement.
d) Any services not listed in the quote or agreement will be invoiced as additional charges.
e) Any special project or services advised by Infusion121 as being outside the scope of ongoing monthly services and will be invoiced as additional charges.
f) Infusion121 gives no warranty or guarantee of “call out” times for ongoing support packages and accepts no liability for any delay.
g) 30 days written notice from the Customer is required to cancel or terminate the ongoing monthly support. In the event of cancellation or termination, the Customer shall be invoiced, and be liable for, the next month’s invoice together with the balance of the month during which notice was given.
8. Consumer Guarantees & ACL:
The Australian Consumer Law in Schedule 2 of the Competition and Consumer Act 2010 (Cth) [“ACL”] provides consumers with certain consumer guarantees and rights in relation to certain transactions concerning goods and/or services (see www.consumerlaw.gov.au). Any rights the Customer may have under the ACL shall apply notwithstanding any inconsistent provisions in these Terms which shall be read down to the extent necessary to comply with the ACL and which shall otherwise apply to the fullest extent legally permissible.
9. Limitation of Liability: To the extent permitted by the ACL:
a) the Customer agrees to limit any claim to the re-supply of services (or cost thereof);
b) Infusion121 shall not be liable for any Consequential Loss and/or any special and/or punitive damages through any fault and/or negligence of Infusion121; and
c) for the purposes of clause 9b) “Consequential Loss” includes but is not limited to: loss of profits, loss of revenue, loss of opportunity, loss of goodwill and/or loss of contract.
10. Exclusions: To the extent permitted by the ACL:
a) Infusion121 gives no warrant or guarantee as to the performance or outcomes of any services (including SEO, any social media presence and/or advertising and/or otherwise) and the Customer agrees to make no claim against Infusion121;
b) no dealing between Infusion121 and the Customer shall be or be deemed to be a sale by sample;
c) the Customer shall rely on its own knowledge and expertise in selecting any services for any purpose and any advice and/or assistance given by or for Infusion121 shall be at the Customer’s risk and shall not be or be deemed to be given as expert or adviser nor to have been relied on by the Customer or anyone claiming through the Customer;
d) Infusion121 shall not be responsible nor liable for paying and/or obtaining any necessary statutory, government and/or utility fees, expenses, orders, approvals, permits and/or licences;
e) Infusion121 shall not be liable for any services: (i) made or performed to designs, drawings, specifications and/or procedures etc. which are provided and/or approved (whether fully or in part) by or on behalf of the Customer; (ii) utilised and/or maintained incorrectly or inappropriately; and/or (iii) supplied by any other party; and
f) the Customer agrees to: (i) check all services for compliance with all applicable laws, standards and/or guidelines before use or application; (ii) comply with all applicable laws, standards and/or guidelines and with all recommendations and/or directions made and/or given by Infusion121 and/or by any other supplier; and (iii) act in good faith and in accordance with good practice at all times.
11. Default:
a) On default or breach of any part of these Terms or any quote, order or agreement by the Customer the full balance of all unpaid monies shall be deemed by this clause to be immediately due and payable (save to the extent that Infusion121 expressly directs otherwise in writing) and Infusion121 may inter alia terminate any order or agreement, retain all monies paid, cease further provision of services, suspend or cancel any website or application hosting and/or recover all lost profits without prejudice to any other rights and without being liable in any way to any party.
b) The Customer agrees to indemnify Infusion121 for all fees and expenses payable to lawyers, mercantile agents and/or other parties acting on behalf of Infusion121 in respect of anything instituted or being considered against the Customer whether for debt or otherwise (including all legal costs on an indemnity basis).
c) Infusion121 may apply any payment in reduction of fees, interest and/or any principal debt in such order of priority as Infusion121 in its discretion deems appropriate.
12. Indemnity: The Customer fully indemnifies Infusion121 against any claim and/or loss arising from or related in any way to any dealing between Infusion121 and the Customer and/or arising under these Terms or any quote, order or agreement.
13. Intellectual Property:
a) The Customer retains ownership of intellectual property in all data, files, drawings, designs, photographs, logos or other materials supplied by the Customer [“Customer Materials”].
b) The Customer must obtain any permissions or licences to use any intellectual property owned by third parties.
c) Infusion121 retains ownership of intellectual property in any and all design, production, copyright, drawings, ideas, custom code or other material created by Infusion121 [“Infusion121 Materials”] for the Customer.
d) The Customer grants Infusion121 a licence to use the Customer Materials in order to provide the services.
e) Infusion121 grants the Customer a licence to use the Infusion 121 Materials as part of the services to the Customer. The licence may be terminated by Infusion121 in its absolute discretion upon written notice.
f) The Customer permits Infusion121 to use, for promotional or training purposes, any of the Customer’s publicly available information (which is not confidential) including, but not limited to: company details, logos and photographs, testimonials and/or artworks.
14. Product Reviews and Website Content:
a) Infusion121 is not responsible or liable for any content posted on any of the Customer’s platforms by the Customer or any third party.
b) The Customer agrees that any content or material posted on the Customer’s platforms shall not be false, misleading, defamatory, offensive, discriminatory, indecent, etc, nor infringe any third party’s rights (intellectual property rights included).
c) Infusion121 reserves the right at its discretion to remove or alter any infringing content or material.
15. Digital and Virus Protection:
Infusion121 accepts no responsibility for protecting the Customer’s or any third party’s network or computer(s) against viruses or other threats as a result of using Infusion121’s services.
16. Other Terms and Conditions:
No terms and conditions sought to be imposed by the Customer upon Infusion121 shall apply.
17. Jurisdiction:
The Customer agrees that these Terms and any claim or dispute between Infusion121 and the Customer shall be governed by the law applicable in the State nominated by Infusion121 and the Customer agrees to submit to the jurisdiction of the appropriate Court nominated by Infusion121 in the capital city of that State. If no State is nominated then Victoria shall be deemed to be the nominated State.
18. Waiver:
An election by Infusion121 not to exercise any rights on any breach of these Terms or any quote, order or agreement shall not constitute a waiver of any rights relating to any other breach.
19. Variations: The Customer:
a) acknowledges that Infusion121 may vary or replace these Terms affecting all future dealings between the Customer and Infusion121;
b) shall be deemed to have notice of any variation to or replacement of these Terms immediately upon Infusion121 notifying the Customer at the Customer’s last known address; and
c) shall be deemed to have accepted these Terms as varied or replaced immediately upon placing any further order with Infusion121.
20. Privacy Policy:
a) Any personal information provided by the Customer to Infusion121 will be treated in accordance with Infusion121’s Privacy Policy.
b) Infusion121’s Privacy Policy may be viewed on its website.
c) You authorise Infusion121 to disclose your personal information to third party suppliers for the purpose of providing the services.
21. Force Majeure:
Infusion121 shall not be in default or in breach of any contract with the Customer as a result of Force Majeure including but not limited to any epidemic, pandemic, industrial disturbance, digital or internet disruption and/or any event beyond the control of Infusion 121.
22. Insolvency:
The Customer shall be in default of these Terms if the Customer commits an act of insolvency, appoints an insolvency practitioner or has one appointed and/or calls a formal meeting of creditors.
23. Severability:
Any part of these Terms shall be capable of severance without affecting any other part of these Terms.