Terms and Condition of the Agreement
SERVICE AGREEMENT CONSTITUTED BY:
Part 1 Service Order Form (“CUSTOMER”)
Part 2 General Terms and Conditions
A. NexIT provides digital marketing, online marketing, consulting, and web development services.
B. NexIT agrees to supply the Customer with the Services in accordance with the Service Order Form and the General Terms and Conditions which together comprise the Agreement.
C. The Customer wishes to engage the services of NexIT in accordance with the terms of the Agreement.
Executed by NexIT Pty Ltd ACN 629 509 299 Section 127 of the Corporations Act 2001:
PART 2 – GENERAL TERMS AND CONDITIONS
1. INTERPRETATION
1.1 In this Agreement unless the context requires otherwise:
a. The singular includes the plural and vice versa.
b. A reference to one gender includes a reference to all other genders.
c. A reference to a Party that is a corporation includes a reference to all related corporations as defined under the Corporations Act (Cth) 2001.
d. Headings to clauses are included for convenience only and do not affect the interpretation of the clauses to which they relate.
e. References to any statute or statutory provision include that statute or statutory provision as amended, extended, consolidated, or replaced by subsequent legislation and any orders, regulations, instruments, or other subordinate legislation made under the relevant statute.
f. This Agreement binds each Party’s legal personal representatives, successors, and assigns.
g. Where a Party comprises two or more persons, the rights and obligations of such persons pursuant to this Agreement will endure for the benefit of and bind all of them jointly and each of them severally.
h. All amounts are in Australian Dollars.
1.2 In this Agreement, unless the context requires otherwise, the following expressions have the following meanings:
a. “Agreement” means this Service Agreement between NexIT and the Customer comprising of the Service Order Form and the General Terms and Conditions.
b. “Confidential Information” means all confidential information of or in connection with NexIT, its related entities or bodies corporate, business associates, and includes without limitation, the following information of NexIT or connected with its activities, dealings, and proposals: NexIT’s and its related parties’ computerised or electronic systems and processes; financial information; new ideas; strategies; product and service plans; unpublished works; marketing plans and studies; forecasts; computer programs; databases; computer codes; trade secrets; software ideas; know-how, technologies, concepts and designs; Intellectual Property Rights; research projects and all information connected with research and development efforts; records; technical specifications; product design; or any document that is marked or which the Customer is informed is confidential or that the Customer ought reasonably to know is confidential to NexIT, its related parties or any third party.
c. “Customer” means the person specified in the Service Order Form engaging NexIT to provide the Services.
d. “Customer Content” means any photograph, illustration, graphic, audio clip, video clip, text, data, or any other information content, display or material provided by the Customer to NexIT.
e. “Customer Website Content” means any and all content uploaded, posted, transmitted, emailed or otherwise made available on or through the Website.
f. “Force Majeure Event” means any event or circumstance or combination of events and circumstances which is beyond the control of NexIT and is not a risk for which NexIT is responsible under this Agreement and cannot, or the effects of which cannot, be prevented, overcome or remedied by the exercise by NexIT of a standard of care and diligence expected of NexIT.
g. “General Terms and Conditions” means these general terms and conditions comprising part 2 of the Agreement between the Customer and NexIT.
h. “Intellectual Property Rights” means all intellectual property rights at any time protected or capable of being protected by statute or common law including copyright, trademarks, patents, registered designs and rights in and to designs and any application or right to apply for registration of these rights including or in connection with, inventions, ideas, discoveries, designs, models, source codes, software, reports and proposals in connection with the Services or the business conducted by NexIT.
i. “Notice” means a notice provided by one Party to another Party in accordance with the terms of this Agreement.
j. “Party” means a party to this Agreement.
k. “Payment” means the payment amount specified in the Service Order Form.
l. “Payment Date” means the payment date(s) as specified in the Service Order Form.
m. “Requested Information” means information requested from the Customer by NexIT in connection with the Services or required in order for NexIT to perform the Services.
n. “Revision” means a minor amendment to any of the Services, performed by NexIT for the benefit of the Customer, requested prior to final approval being given to NexIT by the Customer and prior to the Service being completed at NexIT’s sole discretion.
o. “Services” means the services to be carried out by NexIT for the Customer as described in the Service Order Form.
p. “Service Commencement Date” means the service commencement date as specified in the Service Order Form.
q. “Service End Date” means the service end date specified in the Service Order Form.
r. “Service Order Form” means the service order form, required to be completed by the Customer for the purchase of the Services, and forming part of this Agreement.
s. “Service Period” means the service period specified in the Service Order Form.
t. “Specifications” means the specifications for work agreed to be conducted by NexIT.
u. “Website” means the website created or developed for the Customer by NexIT as part of the Services.
2. AGREEMENT FOR SERVICES
2.1 The Customer agrees to pay the Payment(s) to NexIT on the Payment Date(s) in return for NexIT performing the Services from the Service Commencement Date, for the benefit of the Customer.
2.2 The Services to be provided by NexIT to the Customer are specified on the Service Order Form and the Parties agree that the Service Order Form, together with the General Conditions, forms part of this Agreement.
2.3 Any changes to the Specifications, or the Service Order Form, subsequent to the deemed occurrence of the contract for the supply of Services under this clause shall be made by the Customer only by way of a written request to NexIT and shall be effective only upon the written acceptance of the request by NexIT.
2.4 NexIT is entitled to accept, reject, or modify any such request for changes to the Specifications or the Services.
2.5 The Parties agree that NexIT may change, amend, or vary the Service Order Form, or any part thereof, at the sole discretion of NexIT and any change, amendment, or variation to the Service Order Form shall be considered consented to by the Customer once that change, amendment, or variation is made by NexIT.
3. PAYMENT
3.1 The Payment must be paid by way of credit card, cheque, direct electronic debit, or any other method specified by NexIT from time to time.
3.2 If the Payment is not made within 7 days of the Payment Date(s), NexIT will cease or suspend providing the Services until Payment is received. Suspension or cessation of the Services may adversely affect the ranking of the Website and the Customer’s business.
3.3 Absolute legal title in the Website and the Services vests with NexIT until the Payment(s) is/are made by the Customer to NexIT in full or as agreed by the NexIT team and provided in the service order form.
4. RENEWAL, SUSPENSION AND TERMINATION
4.1 The Customer is not entitled to terminate this Agreement prior to the Service End Date, unless the Customer gives 30 days written Notice to NexIT, in which case the Customer agrees to pay the Payment(s) to NexIT until the end of the notice period.
4.2 In order for the Customer to request NexIT to provide the Services past the Service End Date, the Customer must provide a written Notice to NexIT requesting that the Service Period be extended, upon which NexIT will exercise the power to determine whether or not to extend the Service Period.
4.3 NexIT has the sole power to determine the terms and conditions to apply to the provision of the Services upon an extension of the Service Period past the End Date.
4.4 In the event of a suspension or termination for any reason whatsoever, NexIT shall be under no obligation to provide the Customer with any copies of Customer Website Content, or any other information, materials or data developed or created by NexIT for the purpose of carrying out the Services.
4.5 NexIT reserves the right to require the Customer to sign a new service agreement and provide an additional payment to NexIT in the case that the Customer requests a Revision after final approval has been given to NexIT, or after the Website is live.
5. CONFIDENTIALITY
5.1 During the course of NexIT’s appointment Confidential Information may come to the Customer’s possession or control. All Confidential Information is totally confidential whether or not there is a statement to that effect attached to the information.
5.2 The Customer is required during NexIT’s appointment and at all times after NexIT’s appointment has ended to keep the Confidential Information confidential, unless otherwise required by law or Court Order to disclose such confidential information.
5.3 The obligation contained in this clause operates to ensure that the Customer does not disclose Confidential Information to the Customer’s employees or representatives, other than on a need-to-know basis and in such situation, the Customer must ensure that the employee or representative is aware of the confidential nature of the information.
5.4 The obligation contained in this clause does not apply to any information that is in the public domain, through no default of the Customer.
6. INDEMNITY
6.1 The Customer agrees to indemnify NexIT for any liability whatsoever for any loss or damage suffered by the Customer due to any website not being accessible, being hacked, or being susceptible to a security breach, arising out of or in connection with this Agreement, where such liability results from the wrongful, unlawful, or negligent act or omission of the Customer.
6.2 The Customer agrees to indemnify and hold NexIT harmless from and against any and all loss, liability, claim, cost, or expense (including reasonable legal fees) that NexIT may incur arising out of or in connection with this Agreement due to the wrongful, unlawful, or negligent act or omission of the Customer.
6.3 The Customer agrees to indemnify and hold NexIT harmless from and against any liability, claim, cost, or expense arising from a breach of the Customer’s obligations pursuant to this Agreement.
7. INTELLECTUAL PROPERTY
7.1 All Intellectual Property Rights in or relating to the Services or any information, reports, documents, or proposals developed by NexIT in connection with the Services will remain with NexIT or its licensors and nothing in this Agreement shall operate as an assignment of such Intellectual Property Rights.
7.2 Any Intellectual Property Rights created as a result of any changes or modifications made to the Services or Customer Website Content will be the exclusive property of NexIT and the Customer assigns any Intellectual Property Rights in such changes or modifications to NexIT.
7.3 The Customer warrants that the Customer has obtained all necessary permissions, consents, and approvals for any Customer Content provided to NexIT in connection with the Services and that such Customer Content does not infringe any third party’s Intellectual Property Rights.
8. LIMITATION OF LIABILITY
8.1 To the extent permitted by law, NexIT excludes all liability for any loss, damage, cost, or expense suffered by the Customer arising out of or in connection with this Agreement or the provision of the Services, whether arising under contract, tort (including negligence), statute, or otherwise.
8.2 In no event shall NexIT be liable for any indirect, special, consequential, or punitive damages, or any damages for loss of profits, revenue, data, or use, incurred by the Customer or any third party, whether in an action in contract, tort, or otherwise, even if NexIT has been advised of the possibility of such damages.
8.3 To the extent permitted by law, NexIT’s liability to the Customer for any claim arising out of or in connection with this Agreement or the provision of the Services is limited to the amount paid by the Customer to NexIT for the Services.
9. FORCE MAJEURE
9.1 NexIT shall not be liable for any delay or failure to perform its obligations under this Agreement if such delay or failure is due to a Force Majeure Event.
9.2 If a delay or failure of NexIT to perform its obligations is caused by a Force Majeure Event, the performance of NexIT’s obligations will be suspended.
10. DISPUTE RESOLUTION
10.1 In the event of a dispute between the Parties arising out of or in connection with this Agreement, the Parties shall, in the first instance, seek to resolve the dispute amicably through good faith negotiations.
10.2 If the Parties are unable to resolve the dispute through good faith negotiations within 30 days, either Party may refer the dispute to mediation. The mediation shall be conducted in accordance with the rules and procedures of the Australian Commercial Disputes Centre.
10.3 If the dispute is not resolved through mediation within 60 days of the referral, either Party may refer the dispute to arbitration. The arbitration shall be conducted in accordance with the rules and procedures of the Australian Centre for International Commercial Arbitration.
10.4 Any decision or award made by the arbitrator(s) shall be final and binding on the Parties.
11. GOVERNING LAW
11.1 This Agreement shall be governed by and construed in accordance with the laws of the State of New South Wales, Australia.
11.2 The Parties submit to the non-exclusive jurisdiction of the courts of New South Wales, Australia.
12. GENERAL
12.1 This Agreement constitutes the entire agreement between the Parties and supersedes all prior representations, agreements, statements, and understandings, whether verbal or in writing.
12.2 No failure or delay by either Party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor preclude or restrict its further exercise.
12.3 If any provision of this Agreement is found to be invalid, illegal, or unenforceable by a court of competent jurisdiction, such provision shall be severed and the remainder of the provisions shall continue in full force and effect.
12.4 The Customer may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of NexIT.
12.5 Any Notice or other communication required or permitted to be given under this Agreement shall be in writing and shall be delivered by hand, sent by pre-paid registered post, or sent by email to the address or email address specified in the Service Order Form or as otherwise notified by the Parties.
