Standard Terms and Conditions of Business
1. These Standard Terms and Conditions are to be read with our Engagement Letter to you. They apply to all services that we perform for you that are described in that letter (headed “Scope of Works”) and any additional services Digital O2 Pty Ltd may provide from time to time. Together, the letter and these terms are called “this agreement”. If the two documents are inconsistent, the terms in the Engagement Letter will overrule these Standard Terms and Conditions.
2. Digital O2 Pty Ltd, its affiliates and controlled companies (collectively referred to as “Digital O2”, “us” or “we”) will use all reasonable commercial efforts to complete the Services within any agreed specified timeframe. We will perform the Services with due care, competence and diligence. However the quality of the Services will depend on input from you.
3. You will instruct us fully, and in a timely fashion, giving Digital O2 each of the following (as they are ordinarily reasonably required to perform the Services):
a. Information – Digital O2 is entitled to rely on the accuracy of that information without independently verifying it. That is so whether the information is provided by you, your representatives, or your advisers;
b. Access – to files, records and information technology systems, to premises and to people (whether management or staff) with relevant skills and experience; and
c. Resources – you will provide (and designate to the assignment) all resources that are reasonably necessary to ensure timely approval and sign-off of all accounts and other deliverables.
4. When a particular assignment, task or instruction is to be completed within a specified timeframe, Digital O2 will not be liable for any failure or delay in performing the Services if that failure or delay arises from anything beyond its control – including the untimely performance by you of your obligations. In addition, Digital O2 is entitled to review its fees and, if the delay is substantial, terminate this Agreement.
Fees and Expenses
5. In addition to the fees, you agree to pay all reasonable outlays including (but not limited to) where required, travel, meals and accommodation.
6. Where fees are subject to a fixed quote, Digital O2 is entitled to review any fees quoted, if you do not proceed with the specified engagement within 60 days of the provision of a quotation.
Payment and Responsibility
7. You agree to pay all invoices within 14 days of the billing date. Should payment not be made within 14 days, your account will be placed on hold until the outstanding accounts are paid in full. We reserve the right to perform no further work for you until the debt is satisfied in full or you have agreed to enter into an acceptable and timely payment arrangement with Digital O2 Pty Ltd. Accounts placed on hold, may include the suspension of subscription and Hosting Services.
8. Digital O2 Pty Ltd reserves the right to charge a late payment fee on all accounts outstanding or left unpaid in excess of the above 14 days. A late payment fee of $50 (including GST) will be added to your account and no tax invoice from Digital O2 Pty Ltd will be raised. Should your accounts remain outstanding for more than 45 days from billing date and no prior acceptable agreement with Digital O2 Pty Ltd has been made, we reserve the right to commence legal action.
9. In the event where Digital O2 Pty Ltd takes action to recover the debt, you will be liable for all legal costs and expenses incurred during this time. If judgment is entered, this debt will be placed on your credit rating with Veda Advantage.
10. It is recognised that Digital O2 may provide services to entities over which you have, or represent to have, direct or indirect control, or in which you may have a direct or indirect beneficial interest (‘Associated Entities”). Digital O2 will invoice particular individuals and/or entities for which services are provided as you direct.
11. You agree that you accept ultimate personal responsibility for payment of all invoices, which Digital O2 renders to you and Associated Entities, so that you guarantee payment by those Associated Entities.
Commercial Credit (where applicable)
12. You agree that Digital O2 may seek consumer credit information (section 18K(1)(b), Privacy Act 1988).
If Digital O2 considers it relevant to assessing your application for commercial credit, you agree to Digital O2 obtaining from a credit reporting agency a credit report containing personal credit information about you in relation to commercial credit provided by Digital O2 Pty Ltd.
Exchanging information with other credit providers (Section 18N(1)(b), Privacy Act 1988)
You agree to Digital O2 obtaining personal information about you from other credit providers, whose names you may have provided for Digital O2 or that may be named in a credit report, for the purpose of assessing your application for commercial credit made to Digital O2.
Agreement to a credit provider being given a consumer credit report to collect overdue payments on commercial credit (Section 18K(1)(b), Privacy Act 1988)
You agree that Digital O2 may obtain a consumer credit report about you from a credit reporting agency for the purpose of collecting overdue payments relating to commercial credit owned by you or your related entities.
Consumer Credit (where applicable)
13. Important Notice To Applicant(s) For Credit (Section 18(E)(1) Privacy Act 1988)
Notice of disclosure of your credit information to a credit-reporting agency.
Digital O2 may give information about you to a credit reporting agency, for the following purposes –
▪ To obtain a consumer credit report about you, and/or
▪ To allow the credit reporting agency to create or maintain a credit
information file containing information about you.
The information is limited to –
▪ Identity particulars – your name, sex, address (and the previous two addresses), date of birth, name of employer, and drivers licence number.
▪ Your application for credit or commercial credit – the fact that you have applied for credit and the amount.
▪ The fact that Digital O2 is a current credit provider to you.
▪ Loan repayments which are overdue by more than 60 days, and for which debt collection action has started.
▪ Advice that your loan repayments are no longer overdue in respect of any default that has been listed.
▪ Information that, in the opinion of Digital O2, you have committed a serious credit infringement (that is, fraudulently or shown an intention not to comply with your credit obligations).
▪ Dishonoured cheques – cheques drawn by you for $100 or more which have been dishonoured more than once.
▪ That credit provided to you by Digital O2 has been paid or otherwise discharged.
This information may be given before, during or after the provision of credit to you.
STATEMENT BY APPLICANT(S) FOR CREDIT
Please read the following carefully before signing this Engagement Letter, since by signing you agree to the following:
I. Giving information to a Credit Reporting Agency (Section 18E(8)(c) Privacy Act 1988)
Digital O2 has informed me that it may give certain personal information about me/us to a credit-reporting agency.
II. Access to Commercial Credit Information (Section 18L(4) Privacy Act 1988)
I/we agree that Digital O2 may obtain information about me/us from a business, which provides information about the commercial credit worthiness of persons for the purpose of assessing my/our application for consumer credit.
III. Access to Consumer Credit Information (Section 18K(1)(b), Privacy Act 1988)
I/we agree that Digital O2 may obtain a consumer credit report containing information about me from a credit-reporting agency for the purpose of assessing my/our application for commercial credit.
IV. Exchange of Credit Worthiness Information (Section 18N, Privacy Act 1988)
I/we agree that Digital O2 may exchange information with those credit providers named in this application or named in a consumer credit report issued by a credit reporting agency for the following purposes:
▪ To assess an application by me/us for credit
▪ To notify other credit providers of a default by me/us
▪ To exchange information with other credit providers as to the status of this loan where I am in default with other credit providers
▪ To assess my/our credit worthiness.
I/we understand that the information exchanged can include anything about my/our credit worthiness, credit standing, credit history or credit capacity that credit providers are allowed to exchange under the Privacy Act.
Agreement to a credit provider being given a consumer credit report by a credit reporting agency to assess a guarantor (Section 18K 1(c) Privacy Act 1988).
I/we agree that Digital O2 may obtain from a credit-report containing information about me/us for the purpose of assessing whether to accept me/us as a guarantor for credit applied for. I/we agree that this agreement commences from the date of this agreement and continues until the credit covered by the borrower(s) application ceases.
Agreement to a credit provider disclosing a report including a consumer credit report to potential or existing guarantor (Section 18K (1) Privacy Act 1988).
I/we agree that Digital O2 may give to a person who is currently a guarantor, or whom I/we indicated is considering becoming a guarantor, a credit report containing information about me/us for the purpose of the Prospective Guarantor deciding whether to act as a guarantor, or to keep the Existing Guarantor informed about the guarantee. I/we understand that the information disclosed can include anything about my/our credit worthiness, credit standing, credit history or credit capacity that credit providers are allowed to disclose under the Privacy Act, and includes a credit report.
14. Both Digital O2 and you agree to take reasonable steps to maintain (within our respective organisations) the confidentiality of any proprietary or confidential information of the other. If you wish to provide a third party with copies of Digital O2 reports, letters, information or advice, then Digital O2 reserves the right to:
a. Set the terms on which those copies are given or used; or
b. Require the third party to enter into a direct relationship with us.
Intellectual property rights
15. Digital O2 retains all copyright (and other intellectual property rights) in everything it develops (or is involved in developing) either before or during the course of an Engagement – including systems, methodologies, software and know-how. We also retain all copyright (and other intellectual property rights) in all reports, written advice or other deliverables we provide to you – although you will have the full right to use these materials within your own organisation. If you wish to use these materials outside your own organisation, you must first obtain our written permission.
Indemnity for liability to third parties
16. You agree to indemnify Digital O2 against all liabilities, claims, costs and expenses collectively referred to as “LOSS” (including any GST payable by Digital O2 on amounts paid by you under this indemnity), incurred by Digital O2 in respect of any claim by a third party which is related to, arises out of, or is in any way associated with our Engagement. However, the indemnity does not apply to any Loss in respect of any matters which are finally determined to have resulted from Digital O2’s negligent, wrongful or wilful acts or omissions.
Contractual Limitation of Liability
17. Nothing in these Terms and Conditions excludes restricts or modifies the application of any statute, including the Trade Practices Act, where to do so would contravene that statute or cause the term to be void.
18. If any representations, conditions or warranties are considered to be of importance to you, you should ask that they be incorporated in the Engagement Letter before it is accepted by you. These Terms and Conditions, and the Engagement Letter, constitute the whole of the Agreement covering our relationship, and Digital O2 will not be liable for any statements, representations, or warranties (written or oral) which are not expressly contained in these documents. All warranties which may otherwise be implied by statute, common law, or custom are expressly excluded.
19. You agree that in respect of any liability sustained by you in relation to this Agreement –
a. any loss or damage suffered by you (whether direct indirect or consequential), including (without limitation) liability for any negligent act, omission or misrepresentation by Digital O2, shall be limited to the amount of professional fees paid to us in respect of the Services to which the claim relates. You agree to release Digital O2 from all claims to the extent that Digital O2′s liability exceeds this amount;
b. to the extent that any loss or damage suffered by you is due to an act, omission, negligence, fault or lack of care on your part or on the part of any person for whom you are responsible, Digital O2 is not liable for the loss or damage;
c. If Digital O2 is liable for a breach of any warranty implied by Section 74 of the Trade Practices Act 1974, in respect of Services not of a kind ordinarily acquired for personal, domestic or household use or consumption, our liability under that section is limited to the supply of the Services again or the payment of the cost of having the Services supplied again, whichever we, in our absolute discretion, elect; and
d. Digital O2 will not be liable for any losses, claims, expenses, actions, demands, damages, liabilities or any other proceedings arising out of reliance on any information which is false, misleading or incomplete.
Governing law and jurisdiction
20. All aspects of the Services and the Engagement Letter are governed by, and construed in accordance with, the laws of the state of Queensland. Both you and Digital O2 irrevocably submit to the exclusive jurisdiction of the Courts of the state of Queensland.
21. If any provision or part provision of this agreement is found to be illegal, unenforceable or otherwise invalid then, despite that invalidity –
a. This agreement will remain in full force and effect; and
b. That provision will be deemed to be deleted and substituted by a valid one which in its economic effect comes so close to the invalid provision that it can be reasonably assumed that the parties would have contracted also with this new provision.
Variation and survival
22. This agreement may be varied by written agreement of the parties. Provisions of this agreement that are capable of having effect will survive its termination.
23. We will provide the Services as an independent contractor. Nothing shall be construed to create a partnership, joint venture or other relationship, including the creation of a fiduciary relationship or duty. No party has the right, power or authority to oblige or bind the other in any manner.
Parties to Agreement
24. A reference to “you” in this agreement includes any entity or commercial activity in which you have or have represented to have direct or indirect control or a direct or indirect beneficial interest.