SERVICES TERMS AND CONDITIONS
ATECA PTY LTD ABN 60 627 700 636
These Client Terms, together with any Order Form (defined in clause 1), set out the agreement (this ‘Agreement’) under the terms of which Ateca Pty Ltd ABN 60 627 700 636 (‘Ateca’) provides Services (defined in clause 2) to you or the company which you represent (the ‘Client’).
1. CLIENT FORM, THIS AGREEMENT
(a)These Client Terms will apply to all the Client’s dealings with Ateca, including being incorporated in all agreements, quotations or orders, whether via Ateca’s website, email or in any other form, under which Ateca is to provide services to the Client (each an ‘Order Form’) together with any additional terms included in such an Order Form (provided such additional terms are recorded in writing).
(b)The Client will be taken to have accepted this Agreement if the Client accepts an Order Form, or if the Client orders, accepts or pays for any services provided by Ateca after receiving or becoming aware of this Agreement or these Client Terms.
(c)In the event of any inconsistency between these Client Terms and any Order Form, the clauses of these Client Terms will prevail to the extent of such inconsistency, except that any “Special Conditions” (being terms described as such in an Order Form) will prevail over these Client Terms to the extent of any inconsistency.
(a)In consideration for the payment of the fees set out in the Order Form (Fees), Ateca will provide the Client with subscription services set out in an Order Form (Services).
(b)Unless otherwise agreed, Ateca may, in its discretion:
(i)not commence work on any Services until the Client has paid any Fees payable in respect of such Services; and
(ii)withhold delivery of Services until the Client has paid an invoice in respect of such Services.
3. PRODUCT OFFERING
If the Client subscribes to the Ateca’s Six Month Service, described as such in the Order Form, Ateca will provide it with a free business technology assessment to the Client and clause 15.2(b) will apply, if the client wishes to terminate the service.
4. CLIENT OBLIGATIONS
4.1 PROVIDE INFORMATION AND LIAISON
(a)The Client must provide Ateca with all documentation, information and assistance reasonably required for Ateca to perform the Services.
(b)The Client agrees to liaise with Ateca as it reasonably requests for the purpose of enabling Ateca to provide the Services.
(c)If the Client chooses to pay via the subscription payment method, provide Ateca with the details of its valid credit/debit card (“Valid Card”).
5.1 PAYMENT METHODS
The Client must pay Fees using the fee payment method specified in the Order Form. The Client can elect to pay:
(a)using the subscription payment method where the Client’s Valid Card will be automatically charged in advance of each monthly subscription period (“Subscription Payment Method”); or
(b)by receiving monthly invoices from Ateca.
The Client must pay to Ateca fees in the amounts and at the times set out in the Order Form or as otherwise agreed in writing.
5.3 TIME FOR PAYMENT
(a)If the Client elects to pay using the Subscription Payment Method, Ateca will automatically charge the Client’s Valid Card in advance of each monthly subscription period.
(b)If Ateca issues an invoice to the Client, payment must be made by the time(s) specified in such invoice; and
(c)in all other circumstances, the Client must pay for all services within 2 weeks of receiving an invoice for amounts payable.
Unless otherwise agreed in writing:
(a)the Client will bear all travel, accommodation, office stationery, computer storage, media and related expenses reasonably incurred by Ateca in connection with an Order Form; and
(b)any third party costs incurred by Ateca in the course of performing the Services may be billed to the Client, unless specifically otherwise provided for in the Order Form.
Unless otherwise indicated, amounts stated in an Order Form do not include GST. In relation to any GST payable for a taxable supply by Ateca, the Client must pay the GST subject to Ateca providing a tax invoice.
5.6 CARD SURCHARGES
Ateca reserves the right to charge credit card surcharges in the event payments are made using a credit, debit or charge card (including Visa, MasterCard, American Express or Diners Club).
5.7 ONLINE PAYMENT PARTNER
Ateca may use third-party payment providers (Payment Providers) to collect payments for the Services. The processing of payments by the Payment Provider will be, in addition to these Client Terms, subject to the terms, conditions and privacy policies of the Payment Provider and we are not liable for the security or performance of the Payment Provider. We reserve the right to correct, or to instruct our Payment Provider to correct, any errors or mistakes in collecting your payment.
(a)The Client must pay additional service fees for changes to Services requested by the Client which are outside the scope set out in the relevant Order Form (Changes).
(b)Unless otherwise agreed in writing, Ateca may at its discretion extend or modify any delivery schedule or deadlines for the Services as may be reasonably required by such Changes.
Unless otherwise agreed in writing:
(a)all displays or publications of any deliverables provided to the Client as part of the Services (Deliverables) must, if requested by Ateca, bear an accreditation and/or a copyright notice including Ateca’s name in the form, size and location as directed by Ateca; and
(b)Ateca retains the right to describe the Services and reproduce, publish and display the Deliverables in Ateca’s portfolios and websites for the purposes of recognition or professional advancement, and to be credited with authorship of the Services and Deliverables in connection with such uses.
8. THIRD PARTY GOODS AND SERVICES
(a)Any Service that requires Ateca to acquire goods and services supplied by a third party on behalf of the Client may be subject to the terms & conditions of that third party (Third Party Terms), including ‘no refund’ policies.
(b)The Client agrees to any Third Party Terms applicable to any goods and services supplied by a third party that the Client or Ateca acquires as part of the Services and Ateca will not be liable for any loss or damage suffered by the Client in connection with such Third Party Terms.
(a)Except as contemplated by this Agreement, each party must not, and must not permit any of its officers, employees, agents, contractors or related companies to, use or disclose to any person any confidential information disclosed to it by the other party without its prior written consent.
(b)This clause 9 does not apply to:
(i)information which is generally available to the public (other than as a result of a breach of this Agreement or another obligation of confidence);
(ii)information required to be disclosed by any law; or
(iii)information disclosed by Ateca to its subcontractors, employees or agents for the purposes of performing the Services or its obligations under this Agreement.
10. INTELLECTUAL PROPERTY
10.1 CLIENT CONTENT
(a)The Client grants to Ateca (and its subcontractors, employees and agents) a non-exclusive, royalty free, non-transferable, worldwide and irrevocable licence to use the Client Content to the extent reasonably required to perform any part of the Services.
(i)warrants that Ateca’s use of Client Content as contemplated by this Agreement will not infringe any third-party Intellectual Property Rights; and
(ii)will indemnify Ateca from and against all losses, claims, expenses, damages and liabilities (including any taxes, fees or costs) which arise out of such infringement or a claim of such an infringement.
10.2 DEVELOPED IP
(a)All Developed IP will be owned jointly by Ateca and the Client.
(b)The parties grant each other a non-exclusive, royalty free, non-transferable and irrevocable licence to use any Developed IP.
10.3 ATECA IP
(a)Ateca grants to the Client a non-exclusive, royalty free, non-transferable and revocable licence to use Ateca IP to the extent required for the Client to use, enjoy the benefit of or exploit the Services and/or the Deliverables.
(b)Unless otherwise agreed in writing by Ateca or in this clause 10.3, the Client will not acquire Intellectual Property Rights in any Ateca IP under this Agreement or as part of receiving the Services, aside from Developed IP.
For the purposes of this clause 10:
(a)“Client Content” means any Material supplied by the Client to Ateca under or in connection with this Agreement, including any Intellectual Property Rights attaching to that Material.
(b)“Developed IP” means the Deliverables and any other Material produced by Ateca in conjunction with the Client in the course of providing the Services and any Intellectual Property Rights attaching to that Material or the Deliverables.
(c)“Intellectual Property Rights” means any and all present and future intellectual and industrial property rights throughout the world, including copyright, trade marks, designs, patents or other proprietary rights, confidential information and the right to have information kept confidential, or any rights to registration of such rights whether created before or after the start date set out in an Order Form, whether registered or unregistered.
(d)“Ateca IP” means all Material owned or licensed by Ateca that is not Developed IP and any Intellectual Property Rights attaching to that Material.
(e)“Material” means tangible and intangible information, documents, reports, drawings, designs, software (including source and object code), inventions, concepts, data and other materials in any media whatsoever.
(a)To the maximum extent permitted by applicable law, all express or implied representations and warranties (whether relating to fitness for purpose or performance, or otherwise) not expressly stated in this Agreement or an Order Form are excluded.
(b)Where any law (including the Competition and Consumer Act 2010 (Cth)) implies a condition, warranty or guarantee which may not lawfully be excluded, then, to the maximum extent permitted by applicable law, Ateca’s liability for breach of that non-excludable condition, warranty or guarantee will, at Ateca’s option, be limited to the supply of the services again, or the payment of the cost of having them supplied again.
12. LIMITATION OF LIABILITY
Ateca’s liability for all claims in aggregate (whether those claims be for breach of contract, negligence or otherwise, and whether those claims are for economic loss, or for personal injury or other damage) arising under or in connection with this Agreement:
(a)is totally excluded, to the extent it concerns liability for indirect, special and consequential damages, and damages (whether direct or indirect) reflecting loss of revenue, loss of profits and loss of goodwill; and
(b)is limited, insofar as concerns other liability, to the total money paid to Ateca under this Agreement as at the date the event giving rise to the relevant liability occurred (or, where there are multiple events, the date of the first such event).
The Client indemnifies Ateca from and against all losses, claims, expenses, damages and liabilities (including any taxes, fees or costs) which arise out of:
(a)any breach of this Agreement by the Client; or
(b)any negligent, fraudulent or criminal act or omission of the Client or its personnel.
Ateca may subcontract any aspect of providing the Services and the Client hereby consents to such subcontracting.
15.1 TERMINATION BY ATECA
Ateca may terminate this Agreement in whole or in part immediately if:
(a)the Client is in breach of any term of this Agreement;
(b)the Client becomes subject to any form of insolvency or bankruptcy administration; or
(c)for any reason whatsoever.
If Ateca terminates this Agreement under clauses 15.1(b) or 15.1(c), the Client will be able to access the Services for the remainder of the current monthly subscription period.
15.2 TERMINATION BY THE CLIENT
(a)Subject to clause 15.2(b), the Client may terminate this Agreement at any time either via Ateca’s website or email. Termination will be effective at the end of the current monthly subscription period and the Services will be discontinued from this date. The Client will not receive a refund of any fees or other amounts already paid to Ateca when the Client terminates this Agreement under this clause.
(b)If the Client is subscribed to Ateca’s Advisory Subscription with FREE Assessment for a Six Month Service Commitment, the Client may only terminate this Agreement in whole or in part by written notice to the Ateca:
(i)if Ateca has committed a material breach of this Agreement and has failed to remedy the breach within 30 days after receiving written notice from the Client; or
(ii)if Ateca consents to such termination, subject to the Client’s fulfillment of any pre-conditions to such consent (for example, payment of a pro-rata portion of the agreed fees).
Any provision of this Agreement which, by its nature, would reasonably be expected to be performed after the termination, shall survive and be enforceable after such termination, including without limitation clauses 3, 7, 8, 8, 10, 11, 12, and 13.
16. DISPUTE RESOLUTION
(a)The parties must, without delay and in good faith, attempt to resolve any dispute which arises out of or in connection with this Agreement prior to commencing any proceedings.
(b)If a party requires resolution of a dispute it must immediately submit full details of the dispute to the chief executive officer of the other party or, if the party is an individual, that individual.
(c)The parties acknowledge that compliance with this clause 16 is a condition precedent to any entitlement to claim relief or remedy, whether by way of proceedings in a court of law or otherwise in respect of such disputes, except:
(i)in the case of applications for urgent interlocutory relief; or
(ii)a breach by another party of this clause 16.
17.1 GOVERNING LAW
This Agreement is governed by the law applying in Victoria, Australia.
Each party irrevocably submits to the exclusive jurisdiction of the courts of Victoria, Australia and courts of appeal from them in respect of any proceedings arising out of or in connection with this Agreement. Each party irrevocably waives any objection to the venue of any legal process on the basis that the process has been brought in an inconvenient forum.
A party cannot assign, novate or otherwise transfer any of its rights or obligations under this Agreement without the prior consent of each other party (such consent not to be unreasonably withheld).
(a)Nothing contained in this Agreement creates an agency, partnership, joint venture or employment relationship between Ateca and the Client or any of their respective employees, agents or contractors.
(b)Neither party nor any person acting on its behalf may hold itself out as being entitled to contract or accept payment in the name of or on account of the other party.
This Agreement may only be amended by a document signed by each party.
No party to this Agreement may rely on the words or conduct of any other party as a waiver of any right unless the waiver is in writing and signed by the party granting the waiver.
17.7 FURTHER ACTS AND DOCUMENTS
Each party must promptly do all further acts and execute and deliver all further documents required by law or reasonably requested by another party to give effect to this Agreement.
17.8 ENTIRE AGREEMENT
This Agreement embodies the entire agreement between the parties and supersedes any prior negotiation, conduct, arrangement, understanding or agreement, express or implied, in relation to the subject matter of this Agreement.