Only Digital Solutions Pty Ltd ABN: 42 612 321 436
These terms and conditions are bound to any quote or proposal that you receive from Only Digital Solutions Pty Ltd. Terms outlined in the quote document, proposal document or email correspondence from Only Digital Solutions, along with the terms and conditions herein, form the legally binding Contract between you and Only Digital Solutions. These terms and conditions of the Contract shall be governed by the laws of Queensland and are subject to the jurisdiction of the courts of Queensland.
1. Definition of Terms
1.a. “Supplier”, “our”, “we” or “us” shall mean Only Digital Solutions Pty Ltd or any person acting on behalf of and with the authority of Only Digital Solutions Pty Ltd including employees, contractors and suppliers.
1.b. “Customer” , “Customers” or “you” shall mean the person or entity who is contracting Services from the Supplier, or any person acting on behalf of and with the authority of the Customer.
1.c.. “Services” shall mean all work and offerings supplied by the Supplier to the Customer, whether charged for or delivered free of charge.
1.d. “Quote”, “Proposal” or “Email” refers to the documents from the Supplier in which the cost and inclusions of the Supplier’s Services are outlined. These documents contain additional terms and conditions specific to that type of service, which forms part of this Contract.
1.e. “Contract” shall mean the combination of the terms in the quote document, proposal document or email, as well as the terms outlined herein these terms of trade.
1.f. “Guarantor” shall mean the person, persons or entity who agrees to be liable for the debts of the Customer on a principal debtor basis.
1.g “Project” shall mean the scope of works that the Supplier is set to carry out for the Customer, including the stages of planning, design, execution, training and hand over.
1.h. “Price” shall mean the price quoted for the Services as outlined by the Supplier in the Proposal document, Quote document or by Email.
1.i. “Asset” shall mean any piece of intellectual property, software or hardware created by the Supplier.
1.j. “Customer Content” shall mean the information, designs, drawings, concepts, audio, diagrams, video or specifications that are transmitted by the Customer for use by the Supplier in any medium or format.
1.k. “Scope” shall mean an electronic or hard copy document that outlines the Customer’s requirements for the Project, whether created by the Supplier or the Customer, as long as both Supplier and Customer are aware of the existence of that document and have agreed to use the document as a point of reference for the Project.
2. Contract Acceptance
2.a. Any of the following actions shall constitute the Customer’s acceptance of the Contract and its terms and conditions :
Physical or electronic Customer acceptance of the Supplier’s Quote document, Proposal document or Email
A deposit payment made by the Customer for Services outlined in the Supplier’s Quote document, Proposal document, Email or verbal communication.
Verbal or written instructions from the Customer to proceed with Services outlined in the Supplier’s Quote document, Proposal document, Email or verbal communication.
2.b. Upon acceptance of the Contract, the terms and conditions within the Contract are binding and can only be amended with the written consent of the Supplier.
2.c. Where more than one Customer has entered into a Contract, the Customers shall be jointly and severally liable for all payments of the Price.
2.d. The terms and conditions of this Contract override the terms contained with the Customer’s order or requested by the Customer.
2.e. If any provision within the Contract’s terms and conditions is deemed to be invalid, illegal, void or unenforceable, then the validity and enforceability of the remaining provisions shall not be prejudiced or impaired.
2.f. The Supplier reserves the right to review and change these terms and conditions at any time. Such a change would be in effect from the date on which the Supplier notifies the Customer of such change.
3. Service Delivery
3.a. The Supplier accepts no liability for any deficiency in the Services resulting from incorrect information or specifications provided by the Customer.
3.b. The Supplier shall not be liable for any loss or damage whatever due to failure by the Supplier to deliver the Services (or partial service) in a timely manner or at all.
3.c. Should the Supplier fail to deliver the Service (or partial service), this shall not entitle either party to treat this Contract as annulled.
3.d. The Supplier may sub-contract all or any part of its rights and obligations without the Customer’s consent.
3.e. The Supplier shall act in accordance with the Competition and Consumer Act 2010 (Cth) (CCA) and the Fair Trading Acts of QLD.
3.f. All confidential information (including, but not limited to, trade secrets, pricing, procedures and product information) disclosed under the Contract will remain the exclusive property of the disclosing party. The receiving party shall use at least the same degree of care in protecting the confidential information as it uses with respect to its own confidential information. The receiving party will limit access to Confidential Information to its representatives, instructing them to keep the information confidential. This clause will remain in effect even after termination or expiry of this Contract.
4. Price and Payment
4.a. The Supplier reserves the right to change the quoted Price of Services, in the event that a variation is required to the Services described in the Proposal document, Quote document, Email or Scope document.
4.b. A deposit shall be required by the Supplier prior to commencement of work.
4.c. Final payment shall be required by the Supplier prior to hand over or release of the work completed under the Project.
4.d. The Supplier shall outline pricing via either a Quote document, Proposal document, Scope document, Email or verbally.
4.e. In situations where it is difficult to provide a fixed price, the Supplier shall deliver work at an hourly rate of $85+gst. In this case the Supplier shall keep a log of hours worked and present this to the Customer for payment in blocks of hours.
4.f. GST and other applicable taxes shall be added to the Price, unless they are already expressly included in the Price.
4.g. Payment will be made by direct deposit, credit card, cash or by any other method that is approved by the Supplier.
4.h. The Customer shall not be entitled to set off against or deduct from the Price any sums owed or claimed to be owed to the by the Supplier to the Customer.
4.i. Payment terms shall be stated on the Supplier’s invoices. If no payment term is stated then payment shall be due seven (7) days from the date of the invoice.
4.j. Time shall be of the essence for payment of the Supplier’s Services.
5. Intellectual Property
5.a. Payment shall not deemed to have been made until the Customer’s payment has been cleared in the Supplier’s bank. Until that time, the Supplier’s ownership in respect of the Services shall continue.
5.b. The Supplier and the Customer agree that ownership of the work completed under the Project, including code, designs and intellectual property, shall not pass from the Supplier to the Customer until:
The Customer has paid the Supplier all amounts owed to the Supplier.
The Customer has met all other obligations due to the Supplier in respect of all Contracts between the Supplier and the Customer.
5.c. The Supplier owns the intellectual property of any Asset created by the Supplier (including, but not limited to, code, design, websites, video, copy and graphics) immediately from when it is created.
5.d. On receipt of full payment for the Supplier’s work, the Supplier shall assign to the Customer, the intellectual property rights of the Assets created under the Customer’s Project. Whilst the Customer is in default of payment or any other terms of this Contract, the Customer shall have no right to use the Assets created by the Supplier.
5.e. The Customer shall grant the Supplier a non-exclusive, royalty free licence to use, reproduce, modify and adapt the Asset created for promotional purposes.
5.f. The Supplier retains the right to mark or label the Asset with the Supplier’s brand in an inconspicuous manner that will not detract from the overall aesthetic presentation.
6. Refund Policy
6.a. Once Services have been delivered by the Supplier to the Customer, time shall be of the essence for the Customer to report any dissatisfaction.
6.b. Within ten (10) business days of delivery the Customer shall inspect the Services delivered by the Supplier and notify the Supplier of any alleged defect, errors or failure to comply with the Project’s Scope. Should the Customer fail to notify the Supplier within ten (10) business days of delivery, the Services shall be presumed to be in accordance with the terms and conditions and free from any defect.
6.c. Alleged defects, errors or failure to comply with the Project’s Scope shall be established once the Supplier confirms so in writing.
6.d. Liability for defective or incomplete work is limited to either correcting the Services or providing a refund of the purchased services, and shall be solely at the Supplier’s discretion.
6.e. The Supplier’s liability under this Contract for any loss or damage suffered by the Customer due to an act or omission of the Supplier shall be limited to the Price paid by the Customer for the Project.
6.f. The Supplier shall not be liable to the Customer for direct or indirect damages of any kind (including without limitation, loss of profit, business interruption, loss of data or indirect costs) suffered by the Customer as a result of an act or omission of the Supplier or its representatives.
6.g. The Supplier shall not be liable for any loss or damage incurred by the Customer as a result of:
A third party (including, but not limited to, computer hackers and computer viruses.)
Any equipment failure (including, but not limited to, energy providers and communications networks);
The actions of a representative of the Customer.
The Customer’s failure to comply with any part of this Contract;
Upgrades or changes made by third parties (including, but not limited to, Google, Linux, WordPress, PHP, Cpanel or MySQL)
6.h. Neither party shall be liable for damages or losses resulting from an act of God, fire, flood, drought, storm, terrorism, war, lock-out, strike or any other event beyond the control of either party.
6.i. All open source software and third-party software is provided at the Customer’s own risk and is not warranted by the Supplier. The Supplier shall not be responsible for any loss or damage (including, but not limited to, loss of profit, business interruption, loss of data or indirect costs) suffered by the Customer resulting from issues with open source software or third-party software.
6.j. All risk for the Services passes to the Customer on delivery or receipt of payment from the Customer, whichever comes first.
6.k. Once the Services have been delivered by the Supplier, it is the sole responsibility of the Customer to maintain the Asset unless an on-going maintenance schedule has been agreed upon in writing by both parties. The Supplier shall not be liable for any loss or damage caused by the Customer making any changes to the Asset, and the Customer acknowledges that they do so at their own risk.
6.l. The Supplier shall not be liable for any loss or damage resulting from the theft or hacking of credit card data from a system or website developed by the Supplier. It is solely the Customer’s responsibility to ensure that the risks associated with storing or processing credit card data on the development platform chosen by the Customer is understood, and that the level of risk of doing so is acceptable to the Customer. Should the Customer request a website or system to be built that handles credit card data, the Customer acknowledges that they undertake such a project at their own risk.
7. Customer Content
7.a. The Customer warrants that all Customer Content given to the Supplier shall:
Be either be owned by the Customer or the Customer shall have the legal right to use the content; and
Not breach any third-party copyright; and
Not contain harmful code such as a virus, a hostile program or with intent to spam; and
Be true and accurate; and
Not contain anything that is indecent, unlawful, obscene, racist or defamatory to a person; and
Not breach any industry regulations or legislation; and
Not questionable in its content (at the discretion of the Supplier); and
Not contain information that is deceptive, misleading or otherwise in breach of a provision of the Trade Practices Act of 1974.
The Supplier reserves the right to refuse to accept any Customer Content which does meet the above criteria.
7.b. The Customer indemnifies the Supplier against any claims, damagers or losses that the Supplier incurs or may incur as a result of, or arising in connection with:
The Customer’s failure to comply with any items under this contract;
An alleged infringement by the Supplier arising in connection with the intellectual property rights of Customer Contents or third party sourced materials.
7.c. The Customer must:
Promptly and fully respond to communications from the Supplier, so as to not hold up the Project’s process.
Promptly provide the Customer Contents as requested by the Supplier to complete the project.
8. Security and Charge
8.a. Where the Customer and/or the Guarantor is the owner of land, realty or any other asset capable of being charged, both the Customer and/or the Guarantor agree to mortgage and/or charge all of their joint and/or several interest in the said land, realty or any other asset to the Supplier or the Supplier’s nominee to secure all amounts and other monetary obligations payable under these terms and conditions.
8.b. The Customer and/or the Guarantor agree that the Supplier (or the Supplier’s nominee) shall be entitled to lodge a caveat where appropriate. The caveat shall be withdrawn once all payments and other monetary obligations payable hereunder have been met.
8.c. Should the Supplier elect to proceed in any manner in accordance with this clause, the Customer and/or Guarantor shall indemnify the Supplier from and against all the Supplier’s costs and disbursements including legal costs.
8.d. The Customer and/or the Guarantor agree to irrevocably appoint the Supplier or the Supplier’s nominee as the Customer’s and/or Guarantor’s true and lawful attorney to perform all necessary acts to give effect to the provisions of this clause.
9.a. In the event that the Customer or Supplier suffers an insolvency event, the other party may immediately terminate this Contract by providing written notice.
9.b. On termination of this Contract, both parties must return all confidential information and any other intellectual property of the other party.
9.c. On termination of this Contract the Customer must pay to the Supplier all Fees due and payable under this Contract as at the date of termination.
9.d. Cancelation occurs when either party terminates the Contract at any time, for any other reason other than as set out in 13.1 or 13.b.
9.e. The Supplier reserves the right to terminate the Contract if the Customer does not reasonably respond to requests for information or provide the necessary information for a period of more than 60 days. In this case the Supplier shall not be under obligation to refund any monies paid by the Customer and the Customer must pay to the Supplier all Fees due and payable under this Contract as at the date of termination.
9.f. In the event that the Customer wishes to terminate the Contract, the Customer shall be liable for the total Project Price due under this Contract as at the date of termination plus any loss incurred by the Supplier (including, but not limited to, loss of profits and business interruption) up to the time of termination.
9.g. The Supplier is under no obligation whatsoever to refund the Customer for a Contract that is terminated by the Customer .
10. Default & Consequences
10.a. If the Customer defaults in payment of any invoice;
Supplier reserves the right to suspend or terminate the supply of Services to the Customer. The Supplier will not be liable to the Customer for any loss or damage the Customer suffers because the Supplier has exercised its rights under this clause.
the Customer shall indemnify the Supplier from and against all costs and disbursements incurred by the Supplier in pursuing the debt including collection agency costs and legal fees.
10.b. If any account remains overdue after thirty (30) days then an accounts receivable administration fee of forty dollars ($40) shall become immediately due and payable.
10.c. In addition to the administration fee, an Interest charge of ten percent (10%) per annum, accruing monthly, will apply to the overdue amount starting from when the amount reaches thirty (30) days past its due date.
10.d. If a Customer in default has any information or files on the Supplier’s hosting servers, the Supplier shall be entitled to remove or withhold such material from the Customer. The Supplier is not responsible for any loss of data incurred due to the removal of the Service. Removal of such material does not relieve the Customer of the obligation to pay any outstanding charges assessed to the Customer's account.
10.e. The Supplier is entitled to immediately cancel any Service being provided to the Customer, and all amounts owing to the Supplier shall become immediately payable in the event that:
any money payable to the Supplier becomes thirty (30) days past overdue; and/or
a manager, liquidator, receiver or similar person is appointed in respect of the Customer; and/or
the Customer becomes insolvent, enters into an arrangement with creditors or makes an assignment for the benefit of its creditors
10.f. Failure by the Supplier to enforce any provision of the Contract’s terms and conditions shall not be viewed as a waiver of that provision, nor shall it affect the Supplier’s right to subsequently enforce that provision.
11. Dispute Resolution
11.a Either party must not start legal proceedings in respect of a dispute arising from this Contract unless that party has complied with the clauses in this Contract and has used all reasonable endeavors to resolve the dispute amicably with the other party.
11.b. A party claiming that a dispute has arisen in respect of this Contract must notify the other party's key contact as soon as they are aware of the dispute.
11.c. Unless otherwise noted, the Supplier will assume that the Customer contact for notices is the person who accepts the Contract.
12.a. The Customer and/or the Guarantor/s agree for the Supplier to obtain from a credit reporting agency a credit report containing personal credit information about the Customer and Guarantor/s.
12.b. The Customer consents to the Supplier receiving a consumer credit report, in order to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).
12.c. The Customer and/or the Guarantor/s agree that the Supplier may exchange information about the Customer and the Guarantor/s with credit providers either named as trade referees by the Customer or named in a consumer credit report issued by a credit reporting agency to:
assess the credit limit that should be offered to the Customer and/or Guarantor/s; and/or
exchange information with other credit providers as to the status of this credit account, where the Customer is in default with other credit providers; and/or
notify other credit providers of a default by the Customer.
12.d. The Supplier may give information about the Customer to a credit reporting agency to:
allow the credit reporting agency to maintain a file containing credit information about the Customer; and/or
obtain a consumer credit report about the Customer.
12.e. The Customer agrees that personal credit information provided may be used and retained by the Supplier for :
Provision of Services; and/or
Collecting amounts outstanding on the Customer’s account in relation to the Services; and/or
Analysing and checking the Customer’s credit status in relation to provision of Services.
2/7 Lilly Lane Birkdale Qld Australia 4159