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Terms of Service

Background
A. 224 is a website developer and also provides hosting, maintenance and support services in relation to the website it has developed.
B. 224 has developed the Website for the Client, pursuant to the Services Agreement. Ownership of the Website has vested in the Client.
C. The Client wishes to engage 224 to maintain the Website as specified in the Care Package (Routine Services).

1. Definitions

1.1 In this Agreement, unless the context otherwise requires:

224 means 224 Industries Pty Ltd (ACN: 164 940 630).

224 Background Materials means all Materials which are owned by 224 or licensed to 224 by third parties and used in the delivery of the Services.

Agreement means the agreement to which these terms and conditions are attached.

Ancillary Services means any maintenance, support and development services which do not fall within the scope of Routine Services (and, for the avoidance of doubt, do not include any software development services that are the subject of a statement of work issued under the Services Agreement).

Care Package means the monthly subscription package listed on the Site https://224industries.com.au/care-packages/.

Client means the client who 224 is providing services.

Confidential Information (of a party) means any information:

(a) regarding the business or affairs of that party or its Related Bodies Corporate;

(b) regarding the commercial arrangements between the parties;

(c) which the other party knows, or ought to know, is confidential.

Data Centre means the third party operated data centre at which virtual servers on which the Website is hosted, are located.

Fees means all amounts payable by the Client to 224, under this Agreement.

Government Agency means any government or any governmental, semi-governmental, administrative, fiscal or judicial body, department, commission, authority, tribunal, agency or entity.

Indirect Loss means loss of profits or revenue, loss of goodwill or reputation, loss of anticipated benefits or savings, loss of any prospect or business opportunity, loss of production or other business interruption loss in each case where such losses arises naturally (that is according to the usual course of things) from the relevant breach of this Agreement.

Intellectual Property means all current and future intellectual property rights including copyright, trademarks, designs, patents, including any application or right to apply for registration of any such rights whether created before or after the date of the Agreement, and whether registered or unregistered, existing in Australia or otherwise.

Law means any:

(a) Commonwealth, State, Territory or local government legislation in force in Australia or any law of a foreign jurisdiction applicable to the Services, including regulations, by-laws, declarations, ministerial directions and other subordinate legislation;

(b) common law; and

(c) Government Agency requirement or authorisation (including conditions in respect of any authorisation).

Loss includes any liability, damage, costs (including legal costs on a solicitor and own client basis) and other outgoing, and any diminution in value of, or deficiency of any kind, in anything.

Material means written or other human readable or machine-readable expressions of information, designs, models, software (including source and object code), data and know how.

Personal Information is as defined in the Privacy Legislation.

Privacy Legislation means the Privacy Act 1988 (Cth) and any other similar legislation (to the extent that such legislation applies to the Client or 224) from time to time in force in Australia.

Related Body Corporate has the meaning given to it in the Corporations Act 2001 (Cth).

Services means the Routine Services and the Ancillary Services.

Services Agreement means the services agreement to which 224 and the Client are parties and pursuant to which the Website was developed.

Site means 224’s website https://224industries.com.au/.

Website means the website developed by 224 for the Client under the Services Agreement.

Taxes has the meaning given to that term in clause 15.

Ticketing System means the system used by 224 to assist with the prioritisation and management of service requests received by it from the Client and others.

2. Interpretation

2.1 In this Agreement, unless the context otherwise requires:

(a) words denoting any gender include all genders;

(b) headings are for convenience only and do not affect interpretation;

(c) the singular includes the plural and vice versa;

(d) any schedule attached to this Agreement forms part of it;

(e) a reference to a party includes its successors and permitted assigns; and

(f) a reference to a person includes a corporation, trust, partnership, unincorporated body or other entity, whether or not it comprises a separate legal entity.

3. Scope

3.1 This Agreement commences on the Commencement Date. It continues until terminated in accordance with clause 11.

3.2 224 will provide the Routine Services to the Client.

3.3 224 may also provide Ancillary Services to the Client when requested to do so by and as further agreed in writing with the Client.

3.4 All Services are provided on these terms and conditions.

3.5 The Fees charged by 224 for:

(a) the Routine Services will be as specified in the Care Package; and

(b) the Ancillary Services will be calculated in accordance  with the scope of services as agreed by the Client and 224.

3.6 For the avoidance of doubt neither Routine nor Ancillary Services involve the provision of software development and other related services that are properly the subject of a statement of work under the Services Agreement. 224’s determination as to the classification of the services it provides is final and binding on the Client.

3.7 Nothing in this Agreement prevents the Client from engaging any other provider of services to it but if the Client does so and such other provider contributes to the development of the architecture and/or code base of the Website, 224 will cease to be obliged to continue to support the Website.

4. Services

4.1 224 will provide the Routine Services to the Client each month.

4.2 224, at its discretion, may agree to provide the Ancillary Services to the Client at its request and as scoped and agreed in writing. Ancillary Services will involve the payment of additional fees by the Client to 224.

4.3 The Client acknowledges that 224 uses third-party services to assist in providing the Services and any interruptions or issues caused by the use of third-party services are the responsibility of that third-party and not 224.

4.4 The Website is hosted on virtual servers located at and managed through the Data Centres.

4.5 The availability of the Website (including business continuity and data recovery measures) is under the control of the Data Centres. The Data Centres are responsible for physical and cyber security of the servers. The representations about the service levels to which the Data Centres commits and about its management of such security are available from 224 on request.

4.6 Each service request, specified in the Care Package, will be deemed to commence when 224 receives from the Client a request for Routine Services in accordance with the Ticketing System.

4.7 Each website care package service is available for one website only and the package services must directly relate to the website associated with the clients account.

4.8 224 will use all reasonable commercial efforts to meet the service levels described in the Care Package but does not guarantee that an issue with the Website will be resolved within any specified period as the issues affecting the Website may be beyond the control of 224 and/or may require a longer period for 224 to resolve.

4.9 From time to time 224 will conduct preventative and remedial maintenance on the Website in the provision of the Website (Scheduled Maintenance).

4.10 224 will carry out all Scheduled Maintenance at the times specified in the Care Package.

5. 224 Obligations

5.1 224 will:

(a) provide the Services in a diligent and professional manner with the degree of skill and care that is normally exercised by recognised professional persons which supply services of a similar nature;

(b) maintain sufficient resources to enable it to ensure it can fulfil its obligations under this Agreement;

(c) obtain and maintain any licences, authorisations, consents, approvals and permits required by applicable Laws to provide the Services; and

(d) in respect of providing the Services, comply with Laws and standards relating to the Services or the performance of 224’s obligations under this Agreement.

6. Client Obligations

6.1 The Client must:

(a) comply with all reasonable instructions of 224 relating to the use and management of the Website;

(b) provide 224 with security access to the Client’s website, server or accounts for the purpose of enabling 224 to provide the Services; and

(c) comply with the Ticketing System.

7. Fees

7.1 In consideration of 224 providing the Routine Services, the Client must pay 224 the Fees specified in the Care Package. Fees are payable at monthly intervals in advance but invoicing of Fees will depend on the Commencement Date and may not be on the first day of the month.

7.2 224 reserves the right to adjust the Fees if the Client’s service requirements change and/or the Client subscribes to a different Care Package.

7.3 The Licensee must provide to 224 valid and up-to-date credit card or bank account information as the means by which it pays the Fees to 224. The Licensee authorises 224 to charge such credit card or bank account for amounts due to 224 for the Routine Services under this Agreement.

7.4 In respect of the Ancillary Services, 224 will provide the Client with a tax invoice for the Fees to which 224 is then entitled and each invoice must:

(a) show the amount claimed for payment;

(b) be addressed to the Client;

(c) identify the time periods or work to which the amount payable relates; and

(d) provide the information necessary for the Client to pay the invoice by way of electronic transfer.

7.5 The Client must pay an invoice within 7 days of the date of receipt of the invoice.

7.6 If there is a genuine Dispute as to whether the whole or part of an invoice submitted by 224 is payable, the Client must give notice of the Dispute in writing to 224 within 10 days of receipt of the invoice and pay the amount which is not in dispute.

7.7 The Client may withhold only the amount in Dispute until the resolution of the Dispute and the parties must otherwise continue to comply with their obligations under this Agreement until the Dispute is resolved.

8. Intellectual Property

8.1 224 retains all rights in relation to the 224 Background Materials.

8.2 To the extent that the Client needs to use any of the 224 Background Materials to enjoy the benefit of the Services, 224 grants to the Client an irrevocable, non-exclusive, non-transferable licence to use, reproduce and modify the 224 Background Materials for that purpose.

9. Limitation of Liability

9.1 Terms, conditions, warranties and guarantees implied by Law, which cannot be excluded, restricted or modified apply to this Agreement to the extent required by that Law.

9.2 224 excludes to the extent permitted by Law all other terms, conditions, warranties and guarantees which might be implied into this Agreement.

9.3 The Client does not rely on any representation, warranty or other provision made by 224 or on its behalf which is not expressly stated in these terms.

9.4 To the extent permitted by Law, 224’s sole liability, subject to clause 10.5, for breach of contract, breach of statutory duty, negligence or other tort or under any indemnity given under this Agreement is limited to the Fees actually paid to it in the year in which the event giving rise to 224 liability occurs under this Agreement.

9.5 224 is not liable for loss or corruption of the Client’s data, loss of goodwill or anticipated sales or savings or interruption to business or wasted management/administrative time.

9.6 Neither party is liable to the other for any Indirect Loss arising from a breach of this Agreement.

10. Termination

10.1 This Agreement may be terminated by either party in writing at any time by either party giving to the other notice in writing. Such notice may be given at any time and takes effect on the last day of the immediately following billing month for the Services. In this context, a billing month is the monthly period for which 224 issues a tax invoice.

10.2 224 may terminate this Agreement or suspend the provision of Services by notice in writing to the Client (such notice to take effect immediately) if one or more of the following events occurs:

(a) Fees that have become payable in accordance with this Agreement are not paid in accordance with this Agreement and remain unpaid for a period of more than 7 days;

(b) the Client is in breach of any of its obligations under this Agreement; or

(c) the Client becomes, or threatens to become, insolvent.

10.3 The Client may terminate this Agreement immediately, in whole or in part, by notice to 224 if:

(a) 224 commits a material breach of these terms and conditions that is capable of remedy, and fails to remedy that breach within 10 days from the date the Client notifies 224 of the breach;

(b) 224 becomes, or threatens to become, insolvent.

10.4 On the termination of this Agreement:

(a) the Client must pay to 224 any Fees that remain unpaid up until and including the date of termination; and

(b) 224 will cease to have any obligation to provide the Services to the Client (other than what is required to transition out of the arrangement of providing the Services).

10.5 For the avoidance of doubt, on termination of this Agreement 224 will cease to pay or subscribe for any themes, plug-ins or licences, on your behalf, which are part of the Client’s Care Package.

11. Confidentiality

11.1 Each party must keep confidential, and not use or disclose, any Confidential Information of the other party, except as permitted by this Agreement.

11.2 The obligation of confidence in clause 11.1 extends to Confidential Information provided to, or obtained by, a party before entering into this Agreement.

11.3 The obligation of confidence in clause 11.1 does not apply to Confidential Information that is:

(a) in the public domain otherwise than as a result of a breach of this Agreement or another obligation of confidence;

(b) independently developed by the Recipient; or

(c) already known by the Recipient independently of its interaction with the other party and free of any obligation of confidence.

11.4 A party (Recipient) may disclose Confidential Information of the other party
to personnel of the Recipient who:

(a) have a need to know (and only to the extent that each has a need to know) the Confidential Information for the purposes of this Agreement; and

(b) have been directed and have agreed to keep confidential the Confidential Information on terms not inconsistent with this Agreement, provided the Recipient ensures such personnel comply with the obligation of confidentiality in clause 11.1.

11.5 Each party must take all steps and do all things necessary, prudent or desirable in order to safeguard the confidentiality of the Confidential Information of the other party.

11.6 A Recipient must immediately on termination of this Agreement or on request from the other party:

(a) return to the other party;

(b) destroy and certify in writing to the other party the destruction of; or

(c) destroy and permit an employee of the other party to witness the destruction of, all the other party’s Confidential Information in the Recipient’s possession or control, other than one copy of any notes and other records that the Recipient is required by Law to retain.

12. Privacy

12.1 To the extent that 224 has access to or holds Personal Information when providing the Services, 224 must comply with and must ensure that each of 224 Personnel, comply with, the Privacy Legislation.

13. Contract Management

13.1 Each party must appoint a representative to fulfil that party’s obligations in relation to governance of their commercial arrangements and notify the name of its representative to the other.

13.2 224 will only take instructions from the Client’s Commercial Representative with respect to variations to this Agreement.

13.3 Either party may replace its Commercial Representative by notice in writing to the other party.

14. Taxes

14.1 Any Fees specified by 224 do not include GST unless otherwise specified.

14.2 To the extent that payments to be made under this Agreement are subject to a GST the amount of such tax will be shown as a separate item on the relevant invoice and will be added to the Fees.

15. Notices

15.1 A notice or other communication connected with this Agreement (Notice) must be in writing and in English.

15.2 A Notice must be emailed to the recipient’s email address as set out at the start of this Agreement or as notified in writing from time to time.

15.3 Service of a Notice is deemed to have occurred, if sent by email – on the first day after it is sent, provided that the sender does not receive a message stating that delivery of the email has failed or the recipient is ‘out of the office’.

16. General

16.1 This Agreement may only be varied or replaced by an Agreement executed by the parties.

16.2 A single or partial exercise or waiver by a party of a right relating to this Agreement does not prevent any other exercise of that right or the exercise of any other right.

16.3 Any part or all of any provision of this Agreement that is illegal or unenforceable will be severed from this Agreement and will not affect the continued operation of the remaining provisions of this Agreement.

16.4 224 may update these terms and conditions at any time and, if it does make changes, 224 will take reasonable steps to notify the Client about the changes. The Client should also keep track of whether changes have been made to this policy by referring to the date of publication at the end of this page. If the Client continues to enjoy the benefit of the Services following any amendment to these terms and conditions the Client will be taken to have agreed to comply with the terms and conditions as changed. If the Client does not agree with changes to the terms and conditions, the Client can terminate this Agreement.

16.5 Any rights and remedies that a person may have under this Agreement are in addition to and do not replace or limit any other rights or remedies that the person may have.

16.6 Each party must do or cause to be done all things necessary or reasonably desirable to give full effect to this Agreement and the transactions contemplated by it (including, but not limited to, the execution of documents).

16.7 Except as specifically provided in this Agreement, each party must bear its own legal, accounting and other costs for the preparation and execution of this Agreement.

16.8 This Agreement is governed by and is to be construed in accordance with the laws applicable in Queensland.

Published: February 2018