TERMS AND CONDITIONS OF SALE
1. LEGAL AGREEMENT WITH UPSTAIRS
(a) These Terms and Conditions of Sale apply to the supply and provision of all Goods and/or Services by Integrated Marketing Technology Pty Ltd trading as Upstairs (ABN 91 62 8635 585) (Upstairs).
(b) The legal agreement between Customer and Upstairs (the Service Agreement) in respect of Goods and/or Services supplied or to be supplied to Customer by Upstairs is always comprised of only these Terms and Conditions of Sale and the Scope of Works/Proposal issued by Upstairs. The Scope of Works/Proposal is to be read in conjunction with these Terms and Conditions of Sale.
(c) The Service Agreement does not include any of Customer’s terms or conditions (including in any purchase order or other document submitted by Customer) unless Upstairs expressly agrees otherwise in a written document signed by a Director of Upstairs.
(d) These Terms and Conditions of Sale can only be overridden by a written document signed by a director of Upstairs.
(e) Upstairs and Customer agree to be bound by the Service Agreement every time Customer purchases Goods and/or Services from Upstairs, even if Customer and Upstairs exchange only a Scope of Works/Proposal or purchase order for specific Goods and/or Services.
(a) Various terms are defined within these Terms and Condition of Sale using bold text. Other defined terms are set out below in this clause 2. Underlined words are headings for convenience only.
(b) Authority means any government agency, authority, or department (Commonwealth, State, Territory, or local government) or other body which has a right to impose a requirement or whose consent is required with respect to Goods or Services.
(c) Business Day means a day on which banks are open for trading in Western Australia, excluding Saturdays, Sundays, and public holidays.
(d) Claim means any claim, action, demand, suit, proceeding, cause of action, cost (including legal costs on a solicitor and own client basis), damages, loss and liability whatsoever, including claims by a third party.
(e) Customer means the company, individual, partnership, trust or entity purchasing Goods and/or Services from Upstairs, and includes Customer’s Personnel as appropriate according to the context.
(f) Fees means the fees, charges and amounts stated in the tax invoice(s) issued by Upstairs in respect of Goods and/or Services supplied by Upstairs.
(g) Good Industry Practice means the exercise of that degree of care, skill and diligence which would reasonably and ordinarily be expected from a skilled and experienced provider of goods and services that are of the same or similar nature to the Goods and/or Services.
(h) Goods means the goods, materials and items that Upstairs supplies to Customer, including items and materials in physical format and items and materials in digital or electronic format.
(i) GST means goods and services tax levied pursuant to the GST Act and the expressions “supply” and “tax invoice” have the meanings given in the GST Act.
(j) GST Act means A New Tax System (Goods & Services Tax) Act 1999 (Cth).
(k) Law means Commonwealth, State, Territory, and local government legislation including regulations and by-laws.
(l) Managed Marketing Services means marketing and digital services managed by Upstairs for a defined period of time as referred to in a Scope of Works/Proposal.
(m) Party or Parties means Upstairs or Customer and each and both of them as the context requires.
(n) Personnel means a Party’s officers, employees, agents and contractors.
(o) PPSA means the Personal Property Securities Act 2009 and all regulations pursuant to it.
(p) Upstairs has the meaning given in clause 1(a).
(q) Scope of Works/Proposal means the scope of works issued by Upstairs in relation to specific Goods and/or Services to be supplied by Upstairs, including any project variations incorporated in the Scope of Works/Proposal.
(r) Secured Property means any goods or property over which a Security Interest is created or arises as set out in clause 18.
(s) Security Interest has the meaning given in the PPSA.
(t) Service Agreement has the meaning given in clause 1(b).
(u) Services means services that Upstairs supplies to Customer, including consulting, training, implementation, deployment, data manipulation and other professional services.
(v) Supply Address means the location at or to which the Goods and/or Services are to be supplied by Upstairs, as specified in the Scope of Works/Proposal.
(w) Supply Date means the date or dates the Goods and/or Services are to be supplied by Upstairs, as specified in the Scope of Works/Proposal.
3. AGREEMENT TO PROVIDE GOODS AND SERVICES
(a) Upstairs agrees to provide the Goods and/or Services to Customer on the basis as stated in the Scope of Works/Proposal, including by the Supply Date (subject to clause 8), at the Supply Address and for the duration as stated in the Scope of Works/Proposal, in accordance with the Service Agreement.
(b) Upstairs will determine the method of providing the Goods and/or Services in its discretion and in accordance with the Service Agreement.
(c) Upstairs will provide the Goods and/or Services with care and skill and in a proper and professional manner in compliance with all applicable legislation and Good Industry Practice.
(d) Upstairs will ensure at all times that its conduct will not bring any discredit upon Customer or cause any unreasonable nuisance or disruption to the Customer.
(e) Upstairs will:
keep adequate records of work performed under the Service Agreement; and
provide to Customer regular work progress and update reports as set out in the Scope of Works/Proposal.
(f) Upstairs will provide the Goods and/or Services to Customer alone and will not regard any other entity as its client in relation to the Goods and/or Services.
4. INFORMATION TO BE SUPPLIED BY AND ASSISTANCE FROM CUSTOMER
(a) Customer accepts full responsibility for the accuracy and completeness of all information and content Customer submits to Upstairs, including in relation to Customer’s requirements in relation to Goods and Services required by Customer.
(b) Customer agrees that Upstairs has no responsibility for the correctness or for updating documents or materials prepared by Customer or third parties.
(c) Customer must give Upstairs such assistance as Upstairs reasonably requires to ensure the satisfactory supply of the Goods and/or Services, including providing timely access to key stakeholders in Customer’s business as reasonably required by Upstairs.
(d) Customer must allow Upstairs to access the Supply Address and Customer’s IT systems (including as set out in the Scope of Works/Proposal) when reasonably required by Upstairs for the supply of the Goods and/or Services, subject to compliance with Customer’s reasonable site and security requirements.
(e) Customer must obtain and maintain, at its own cost, all authorisations, licences, approvals, permits or consents necessary for purchase or use of the Goods and/or Services by Customer.
5. WEBSITE DESIGN AND DEVELOPMENT BY UPSTAIRS
(a) This clause 5 applies if the Scope of Works/Proposal provides that Upstairs will provide website design and development services as part of the Services.
(b) Upstairs will only develop and implement websites for devices and browsers as stated in the Scope of Works/Proposal. Upstairs gives no warranty that any website will work on any other browsers, hardware or software.
(c) Upstairs will develop and implement websites at the optimal screen resolution as stated in the Scope of Works/Proposal. Upstairs gives no warranty that other screen resolutions will present the website in an optimal manner.
(d) Customer agrees that if it does not provide website content to Upstairs by the end of the four week period referred to in clause 5(a) then Upstairs may immediately after expiry of that period render a tax invoice to Customer for all website development work done by Upstairs up to the date of the invoice.
(e) Customer agrees that its failure to provide content as required under clause 5(a) does not prevent Upstairs from rendering a tax invoice pursuant to clause 5(d).
(f) Customer agrees that if content supplied by Customer needs to be amended, corrected or updated, as determined by Upstairs acting reasonably, then Upstairs is entitled to charge for that work at its usual fees and charges, and such costs are not included in Fees estimated or quoted in a Scope of Works/Proposal.
(g) Customer must provide sign-off and acceptance of the website as designed and developed by Upstairs in accordance with clause 8.
(h) Customer agrees that any website hosting services arranged by Upstairs are subject to the terms and conditions of the third party hosting provider.
(g) Customer agrees that if their website or application is not hosted with Upstairs the website will be packaged up by Upstairs in the following manner:
1. Connect to the site in question’s FTP account
2. Copy all files, excluding DB_NAME, DB_USER and DB_PASSWORD from wp-confib.php (the root)
3. Create a zip file of all files, including database.sql file
4. Send file via file transfer provider to client advising on the optimal software version/php in accordance with the file migration. Following the website packaging and handover of files, the Customer agrees that Upstairs is no longer responsible or liable for any website remediation and all work requests will be charged on time and materials.
Customer agrees to pay Upstairs time and materials for any engagement with a 3rd party hosting supplier to assist with the transfer.
6. IMPLEMENTATION, INSTALLATION AND CONFIGURATION SERVICES BY UPSTAIRS
(a) This clause 6 applies if the Scope of Works/Proposal provides that Upstairs will provide any implementation, installation, hosting or configuration services with respect to Goods and/or Services.
(b) Customer is responsible for:
co-ordinating the provision of new physical telecommunications and carrier services (or the re-configuration of existing physical telecommunications and carrier services) which will
be used to provide access to and use of the Goods and/or Services;
co-ordinating all Customer-engaged third party suppliers, including ensuring compliance of the third parties to the Scope of Works/Proposal;
providing all Customer configuration data in agreed formats at the times agreed between Upstairs and Customer; and
ensuring remote access by Upstairs to Customer’s IT systems (including domain name servers and controllers) is available at the time of implementation, installation, configuration and programming works as reasonably required by Upstairs.
(c) Customer must provide sign-off and acceptance of implementation, installation, hosting or configuration services in accordance with clause 8.
7. MANAGED MARKETING SERVICES
(a) This clause 7 applies if the Scope of Works/Proposal provides that Upstairs will provide Managed Marketing Services as part of the Services.
(b) If Upstairs provides to Customer a “Blueprint” document setting out Upstairs’s proposal for provision of Managed Marketing Services to Customer, Customer must within 2 weeks of provision of the “Blueprint” notify Upstairs in writing if Customer does not want to proceed with purchasing the Managed Marketing Services. If Customer does not give such a written notice by that date:
Customer will be deemed to have agreed that Customer wishes to purchase the Managed Marketing Services on the basis as set out in the “Blueprint” document; and
Upstairs may render tax invoices to Customer for the Managed Marketing Services on the basis as set out in the “Blueprint” document.
(c) Customer agrees that its failure to provide a notice as referred to in clause 7(a) bars Customer from asserting that it did not order the Managed Marketing Services as invoiced by Upstairs.
(d) If Customer wishes to cancel Managed Marketing Services a minimum notice period and cancellation fees will apply, as set out in the Scope of Works/Proposal. Customer must pay those fees. Additional hosting fees may also be payable in the event of such cancellation, as set out in the Scope of Works/Proposal
(e) Customer must provide sign-off and acceptance of Managed Marketing Services as supplied by Upstairs in accordance with clause 8.
8. ACHIEVEMENT OF MILESTONES AND ACCEPTANCE TESTING
(a) Milestones and Supply Dates: The Scope of Works/Proposal will set out any milestones, milestone dates and Supply Dates that Upstairs agrees to meet and satisfy when providing the Goods and/or Services.
(b) Unless otherwise expressly agreed in writing by Upstairs, Supply Dates and milestones dates are estimates only.
(c) Upstairs will use reasonable efforts to notify Customer of any anticipated or actual delay in supply of Goods and/or Services and the earliest possible supply date.
(d) Customer acknowledges that any delay by Customer or its Personnel in complying with the Service Agreement may cause delays and prevent Upstairs from meeting milestones or Supply Dates.
(e) To the maximum extent permitted by Law, Upstairs will not be liable for any Claims suffered or incurred by Customer,
by Upstairs to supply the Goods or Services by a Supply Date unless the failure is due to gross negligence by Upstairs or wilful breach by Upstairs of the Service Agreement. (f) Acceptance Criteria: The criteria that will apply to determine whether Goods and/or Services (or any component thereof) have been supplied by Upstairs in accordance with the Scope of Works/Proposal, including whether milestones have been achieved by Upstairs by applicable milestone dates, shall be as stated in the Scope of Works/Proposal (the Acceptance Criteria).
(g) Customer must assess and apply the Acceptance Criteria acting reasonably and in good faith.
(h) Customer must conduct acceptance tests on the Goods and/or Services as supplied by Upstairs to verify whether the Goods and/or Services meet the Acceptance Criteria, including whether milestones have been achieved by Upstairs by the applicable milestone dates. This must be done promptly after a request to do so from Upstairs, and no later than the date that is two weeks after the request from Upstairs. If Customer does not comply with this obligation Customer will be deemed to have accepted that the relevant Goods and/or Services comply with the Acceptance Criteria.
(i) Customer must dedicate sufficient resources, time and personnel as reasonably required by Upstairs to ensure acceptance tests are completed without delay.
(j) Notice of acceptance: If Goods and/or Services as supplied by Upstairs satisfy the relevant Acceptance Criteria Customer must promptly issue to Upstairs a notice that the Acceptance Criteria are met and that the Goods and/or Services are accepted in accordance with the Service Agreement.
(k) Notice of non-compliance: If Customer acting reasonably considers that Goods and/or Services do not meet the applicable Acceptance Criteria (including where it considers that a milestone has not been achieved as required) Customer must notify Upstairs promptly in writing with reference to the relevant Acceptance Criteria. Customer must include reasons for why it considers that the Goods and/or Services do not meet the Acceptance Criteria stated in the notice (including why a milestone has not been met, as applicable).
(l) Rectification of non-compliance: If Customer notifies Upstairs under this clause 8 that Customer considers that Goods and/or Services do not meet the Acceptance Criteria (including that a milestone has not been met), and the failure is not due to any fault of or delay by Customer, Upstairs must (unless otherwise agreed with Customer in writing) promptly take all reasonably necessary steps at its expense to ensure that the Goods and/or Services are supplied in compliance with the Acceptance Criteria (including that milestones are met, as applicable) by a revised Supply Date as reasonably determined and advised by Upstairs. If the failure is due to any fault of or delay by Customer, without affecting its rights under clause 20 Upstairs is entitled to charge additional fees and charges to supply the Goods and/or Service in accordance with the Acceptance Criteria, as determined by Upstairs acting reasonably.
(m) Where Customer is a consumer: defective Goods and/or Services: Upstairs’s goods and services come with guarantees that cannot be excluded under the Australian Consumer Law (the ACL). This applies where Customer is a “consumer” as defined under the ACL. In such cases, for major failures with the Services, Customer is entitled under the ACL:
to cancel its service contract with Upstairs; and
to a refund for the unused portion, or to compensation for its reduced value.
(n) Customer is also entitled to choose a refund or replacement for major failures with Goods. If a failure with the Goods or Services does not amount to a major failure, Customer is entitled to have the failure rectified in a reasonable time. If this is not done Customer is entitled to a refund for the Goods and to cancel the contract for the Services and obtain a refund of any unused portion. Customer is also entitled to be compensated for any other reasonably foreseeable loss or damage from a failure in the Goods or Services.
(o) Failure to accept: If Customer does not accept supply of the Goods and/or Services as required by clause 8, Upstairs is entitled to recover from Customer as a debt due any losses, expenses or costs reasonably incurred by Upstairs as a result of Customer’s failure to accept supply of the Goods and/or Services.
9. MINIMUM SPECIFICATIONS AND SECURITY
(a) Customer must ensure it complies with minimum hardware, software and other specifications as reasonably specified by Upstairs for use with the Goods and/or Services, including as set out in the Scope of Works/Proposal.
(b) Customer shall not perform changes to Customer’s domain, assigned IP addresses, MS Exchange settings, database settings, tables and database environment, server hardware and software environment associated with the installation and use of Goods and/or Services without the prior written agreement of Upstairs. Failure to comply with this requirement may require Upstairs to re-configure the Goods and/or Services and the time and materials involved in the effort must be paid by Customer at Upstairs’s then applicable fees and rates.
(c) Customer acknowledges that Upstairs’s normal policy is that administrative privileges are not granted to Customer in respect of websites built by Upstairs. This is to ensure integrity of the websites and to minimise the risk of the website becoming non-functional. Waivers of this requirement can be negotiated on a case by case basis with Upstairs.
(d) Customer is responsible for:
maintaining adequate internal security measures and systems to prevent unauthorised or inappropriate use of the Goods and/or Services, including using up to date anti-virus software and firewalls; and
ensuring the security of user names and passwords that Upstairs provides to Customer.
10. FEES, INVOICING, PAYMENT AND GST
(a) Fees: Unless otherwise specified in the Scope of Works/Proposal, a tax invoice issued by Upstairs or these Terms and Conditions of Sale provide otherwise, the Fees excludes GST and includes all of Upstairs’s internal costs incurred in supplying the Goods and/or Services.
(b) Fees estimated or quoted in a Scope of Works/Proposal are subject to the assumptions and review procedure as stated in the Scope of Works/Proposal. Upstairs has the right to adjust the Fees on the basis as stated in the Scope of Works/Proposal, including if the assumptions are not adhered to.
(c) Fees estimated or quoted in a Scope of Works/Proposal do not include the costs of ad hoc and/or additional development work, additional support hours or the addition of extra functionality not included in the Scope of Works/Proposal.
(d) All Fees assume that Goods and/or Services are delivered during 8:30am and 5:00pm in Perth, Western Australia on Business Days. Additional charges will apply for supply outside of those hours. (e) Third party costs: Unless expressly stated in the Scope of Works/Proposal or Upstairs’s tax invoice, the Fees do not include third party costs incurred by Upstairs in providing the Goods and/or Services, including advertising placement, Google and social media advertising spend, photography, printing and delivery costs, and third party hosting costs. These costs must be paid by Customer in addition to the Fees and will be invoiced to Customer by Upstairs. Customer agrees that Upstairs is entitled to invoice these costs in advance if required by Upstairs.
(f) Customer must pay all GST, taxes, levies, fees, duties and other amounts imposed by any Authority in relation to Goods and/or Services supplied (excluding income tax payable by Upstairs). Such items are only included in the Fees where a tax invoice states that is the case.
(g) Taxes and tax invoices: Unless otherwise agreed by Upstairs or as permitted under these Terms and Conditions of Sale, Upstairs will issue tax invoices to Customer at times as set out in the Scope of Works/Proposal.
(h) All tax invoices will comply with the GST Act.
(i) Payment terms: Upstairs prefers that its Customers pay their tax invoices on the date the invoices are issued, by direct debit to a bank account or valid credit card. Any other payment terms must be agreed by Upstairs upon acceptance of the Scope of Works/Proposal. Customers provided extended credit terms must pay Upstairs’s tax invoices within the payment period stated on the tax invoice supplied to Customer (or 7 days from date of invoice if no period is stated). Cash accounts must be paid upfront before any Goods and/or Services will be supplied to Customer.
(j) If any tax invoice issued by Upstairs to Customer is overdue and unpaid, Upstairs is entitled to withhold supply of any Goods and/or Services until overdue amounts are paid in full. Customer agrees that Upstairs is entitled to disable websites built by Upstairs if Fees are in arrears for more than 60 days.
(k) Subject to the terms of any credit account application submitted by Customer to Upstairs or any credit facility granted by Upstairs, Upstairs reserves the right to charge compound interest in respect of any amounts as may from time to time be overdue, calculated daily at the rate equal to 12% per annum, from the due date of payment until the date of actual payment of the overdue amount. Interest accruing under this clause is immediately payable by Customer on demand by Upstairs.
(l) Customer agrees to pay Upstairs’s legal costs (on a full indemnity basis) if Customer is in default under the Service Agreement and Upstairs requires legal assistance to enforce the Service Agreement against Customer.
(m) Disputed amounts: If Customer disputes any amount claimed by Upstairs to be due and payable, Customer must pay the undisputed part (if any) of the relevant tax invoice in accordance with clause 10(i).
(n) Access to Customer’s premises: Customer grants to Upstairs and its Personnel and agents an irrevocable license to enter Customer’s premises at any reasonable time to retrieve and take possession of all physical Goods that have not been paid for in full.
11. GRANTING OF CREDIT BY UPSTAIRS
(a) The Customer has no entitlement to receive Goods and/or Services from Upstairs on credit terms.
(b) If Customer wishes to purchase Goods and/or Services on credit terms it must complete a credit account application when approving the Scope of Works/Proposal. Upstairs may, at its discretion, reject any credit account application received by it.
(c) Upstairs may at any time request from Customer any additional references, documentation or information that Upstairs reasonably requires in connection with Customer’s credit account application or credit facility opened with Upstairs, including where Customer applies to increase its credit limit.
(d) If at any time Upstairs reasonably forms the view that the financial standing of Customer has changed adversely since approving a credit account application and credit facility for that Customer, Upstairs may refuse to extend any further credit to Customer, or increase or decrease Customer’s credit limit.
(e) Upstairs may impose a minimum account keeping fee as a condition of any credit supplied.
12. UPSTAIRS WARRANTIES
(a) Upstairs warrants to Customer that all Goods and Services supplied are of acceptable quality and fit for their usual purpose and will comply with all applicable Laws.
(b) Other than as expressly stated set out in these Terms and Conditions of Sale, to the maximum extent permitted by Law no warranties or representations, whether express or implied, are made by Upstairs about the Goods and/or Services.
13. PASSING OF TITLE AND RISK IN GOODS
(a) Physical Goods: If Upstairs is responsible for supplying physical Goods to the Customer, supply of the Goods will be deemed to have taken place, and risk in the Goods will pass to Customer, at the earliest of the following:
when a docket has been signed by Customer or its Personnel at the Supply Address; or
when the Goods are left in a reasonably secure state at the Supply Address; or
if Customer is responsible for collecting the Goods from Upstairs’s office, when the Goods are placed in the possession or control of Customer or their freight or delivery provider.
(b) Passing of title: Title in all Goods supplied to Customer does not pass to Customer until and upon payment of the Fees has been received in full by Upstairs.
14. INTELLECTUAL PROPERTY
(a) Artwork means design logos, artwork or other graphical elements created by Upstairs as part of providing the Goods and/or Services to Customer.
(b) Intellectual Property Rights means all intellectual property rights including current and future registered and unregistered rights in respect of all forms of intellectual and industrial property, including copyright, design rights, trademarks, logos, brands, trade secrets, recipes, know-how, confidential information, patents, inventions and discoveries.
(c) Upstairs Technology means Upstairs’s proprietary software and marketing technology, tools, algorithms, methods and processes, including all:
raw files relating to design aspects;
business rules, search engine optimisation rules, keyword strategies and related data;
WordPress, Google Ads, Google My Business and Google Analytics setup, configuration and management tools and methods;
social media setup, configuration and management methods;
content management system setup, configuration and management methods data optimisation methods;
testing and quality and assurance methods and processes;
website speed optimisation methods;
configuration rules, files and methodologies;
software code, source code, object code, binary code, executable code;
middleware, modules, components, libraries, programs, databases;
accompanying or associated media, business rules, algorithms, configurations, backups, updates, service packs, patches and hot fixes; and
related files and documentation,
in any media or format, and including all associated or embodied Intellectual Property Rights.
(d) Template means a website or document template developed by Upstairs with broad visual language specifically for Customer as part of supplying the Goods and Services.
(e) Ownership of IP: Customer agrees that Upstairs owns all Intellectual Property Rights in and to all Upstairs Technology and all Artwork.
(f) Upstairs agrees that Customer owns all Intellectual Property Rights in Customer’s proprietary data, information and materials that existed prior to entering into the Service Agreement.
(g) Except as set out in clause 14(n), neither Party transfers any right, title or interest in its Intellectual Property Rights to the other Party.
(h) Neither Party will cause or permit anything that may amount to misuse, interference with or damage to the Intellectual Property Rights of the other Party, or assist or allow others to do so.
(i) Grant of Licence: Subject to payment by Customer of the Fees and compliance by the Customer with the Service Agreement, Upstairs grants to the Customer a limited, non-exclusive, royalty-free, non-transferable, revocable licence (the Licence) to use the Artwork, the Templates and the Upstairs Technology for the purpose they were supplied for as stated in the Scope of Works/Proposal, on the terms set out in this clause 14.
(j) The Licence:
is not a sale or transfer of any Upstairs Technology, Template or Artwork to any entity, including Customer;
does not include any right to sublicense any Artwork, Template or Upstairs Technology;
is only for a limited term (the Licence Term) equal to the period during or in respect of which Customer pays to Upstairs the Fees; and
expires at the end of the Licence Term.
(k) If the Customer ceases paying Fees to Upstairs then the Licence Term shall end and the Licence shall terminate.
(l) Prohibited acts: Customer must not:
copy any Upstairs Technology;
disclose any Upstairs Technology outside of Customer’s organisation;
alter, customise, modify or create derivative works of any Upstairs Technology; or
combine or incorporate any Upstairs Technology in any products, goods or service without the prior written consent of Upstairs, which Upstairs may at its discretion refuse to give or may give on such conditions as Upstairs, at its discretion, determines.
(m) Customer is permitted to on-supply to third parties Goods in the nature of corporate livery or marketing materials or collateral which contain embedded Artwork, provided those Goods are by their nature intended to be distributed to third parties for promotional or company administration purposes (for example, brochures, letterheads, caps, t-shirts, etc.).
(n) Transfer of IP in Templates and Artwork: If the Scope of Works/Proposal expressly states that Upstairs will supply Templates and Artwork as part of providing the Goods and/or Services and that Customer will own the Intellectual Property Rights in the Templates and Artwork upon completion of providing the Goods and/or Services, then Upstairs will, upon written request from Customer, execute a written document transferring ownership of such Intellectual Property Rights to Customer at no charge to Customer, supplied Customer has complied with the Service Agreement in all respects, including paying all Fees due to Upstairs. Until Upstairs has executed such a transfer document, all such Intellectual Property Rights remain owned solely by Upstairs.
Each Party must purchase and maintain all insurances necessary to enable each Party to perform its obligations and undertakings under the Service Agreement and any other insurances required by Law.
16. LIABILITY, INDEMNITY AND LIMITATION
(a) Indemnity: Subject to clause 17, each Party is liable for and must indemnify the other Party and their respective Personnel from and against any liability and any Claim arising out of or in connection with:
a reckless or wilful act or omission by the Party or its Personnel; or
a breach of Law or the Service Agreement by the Party or its Personnel.
(b) A reference to Customer’s Personnel in this paragraph (a) does not include Upstairs or its Personnel.
(c) Subject to clause 17, Customer is liable for and must indemnify Upstairs and its Personnel from and against any liability and any Claim arising out of or in connection with an action brought or threatened against Upstairs by any third party which arises directly or indirectly from Customer’s purchase or use of Goods or Services, except where Upstairs is liable to indemnify Customer under clause 16(a).
(d) Each indemnity in this Service Agreement is a continuing obligation, separate and independent from the other obligations of the Parties.
(e) To the maximum extent permitted by Law, the aggregate liability of Upstairs for breach of the Service Agreement or in connection with the supply of any Goods and/or Services will at all times be limited to the Fees paid or payable by Customer in relation to the Goods and/or Services connected with the breach.
17. CONSEQUENTIAL LOSS
Notwithstanding any other clause in the Service Agreement, under no circumstance shall either Party be liable for any special or consequential loss suffered by the other Party or its Personnel, including any loss of revenue,
loss of profits, loss of contracts, loss of production, increased cost of working capital or business interruption, whether or not the possibility or potential extent of the loss or damage was known or foreseeable, and whether arising from a claim under an indemnity, in contract, in tort (including negligence), under statute or otherwise.
(a) Customer charges in favour of Upstairs all Goods and/or Services provided by Upstairs to secure the obligations owed by Customer to Upstairs under the Service Agreement.
(b) In addition to clause 18(a), Customer agrees that these Terms and Conditions of Sale constitute a security agreement under the PPSA and create a Security Interest in:
all Goods previously supplied by Upstairs to Customer; and
all Goods that will be supplied in the future by Upstairs to Customer,
and the retention of title arrangement described in clause 13 constitutes a purchase money security interest (or PMSI) in favour of Upstairs in respect of all Goods and any proceeds of sale of the Goods to secure the Fees of the Goods under the PPSA. Customer must not do or permit to be done anything that may result in the PMSI ranking in priority behind any other security interest in respect of the Goods.
(c) Customer must not grant to any other person a Security Interest in Goods that have not been paid for in full, or allow any registration of any type to be made on the Personal Property Securities Register against or in respect of such Goods (other than by Upstairs).
(d) Customer consents to Upstairs making and maintaining a registration on the Personal Property Securities Register in any manner Upstairs considers appropriate in relation to any Security Interest granted in or arising under the Service Agreement.
(e) To the extent permitted by the PPSA, Customer waives its right to receive notice of any registration events to which sections 144 or 157 of the PPSA applies.
(f) To the extent permitted by section 115(1) of the PPSA, Customer and Upstairs agree that sections 95, 96, 126, 130, 132(3)(d), 132(4), 135, 142 and 143 of the PPSA do not apply to the Service Agreement.
(g) Customer must, whenever requested by Upstairs, promptly do or cause to be done anything reasonably requested by Upstairs for more satisfactorily assuring or securing to Upstairs the Secured Property in a manner not inconsistent with any of the provisions of the Service Agreement, or for assisting in the execution or exercise of any power of Upstairs under the Service Agreement. If Customer fails within a reasonable time to take any such further steps, then Customer irrevocably appoints each of Upstairs and its directors individually, as its attorney to take those steps on Customer’s behalf.
19. ASSIGNMENT AND SUBCONTRACTING
(a) Customer is not permitted to assign or subcontract any of its obligations under the Service Agreement without Upstairs’s written consent.
(b) Customer agrees that Upstairs may subcontract provision of parts of the Goods/and or Services, provided always that Upstairs remains liable for all acts and omissions by its subcontractors as if those acts or omissions are those of Upstairs.
(c) Customer and Upstairs must ensure compliance with the Service Agreement by their respective Personnel.
(d) Upstairs is liable for all acts and omissions by its Personnel as if those acts or omissions are those of Upstairs.
(e) Customer is liable for all acts and omissions by its Personnel as if those acts or omissions are those of Customer.
(a) In addition to any rights at Law, either Party may terminate the Service Agreement immediately by giving notice to the other Party if:
the other Party breaches any term of the Service Agreement and fails to remedy the breach within 14 days of written notification of the breach; or
the other Party ceases to carry on business, becomes bankrupt, insolvent, or has an external controller appointed.
(b) Customer acknowledges and agrees that all Upstairs Technology will not be available for Customer’s use if the Licence ends and/or the Service Agreement is terminated. Upstairs will be entitled to remove all Upstairs Technology from Customer’s website, domain and IT systems and to clear all caches. Unless expressly authorised in writing by a Director of Upstairs, Customer is not entitled to retain a copy of any Upstairs Technology.
(c) Clauses 13, 15, 14, 16, 17, 18, 20, 21, 22(b) and 29 survive termination of the Service Agreement.
(a) A Party must not disclose or use for an improper purpose any confidential information received from the other Party.
(b) Each Party can disclose such confidential information if:
required by Law, a court or rules of a stock exchange;
the information is disclosed to professional advisers or bankers; or
the information is disclosed to an officer or employee of the Party.
22. FORCE MAJEURE
(a) If a Party (the Restricted Party) is prevented from performing obligations under the Service Agreement due to act of god, industrial action, boycott, flood, fire, war, delay or failure of carrier, adverse weather, civil unrest, epidemic, pandemic, Law or Government intervention, the Restricted Party may give notice of such cause to the other Party and the time for performance of the Restricted Party’s obligations (other than to pay money) shall be extended by the period the cause continues. If the cause continues for more than 60 days either Party may terminate the Service Agreement.
(b) Where a Party terminates the Service Agreement under clause 22(a), Upstairs is entitled to supply to Customer any part of the Goods and/or Services that Upstairs is able to, and Upstairs is entitled to invoice Customer for the Goods and/or Services (or part thereof) supplied.
23. TRUSTEE PROVISIONS
(a) If Customer is a trustee, it enters into the Service Agreement in its own capacity and also as trustee of the trust of which it is trustee, and Customer represents and warrants to Upstairs that:
it has full authority and power to enter into the Service Agreement and perform the obligations under it, including for the benefit of the beneficiaries of that trust; and
it has a right to be fully indemnified out of the trust in respect of the obligations imposed on it in its capacity as trustee.
The Service Agreement may only be varied by writing signed by the Parties. Upstairs may vary these Terms and Conditions of Sale in relation to future purchases of Goods and/or Services by Customer, by giving notice in writing to Customer of the variations. If Customer does not wish to be bound by the variations in respect of such future purchases, Customer is entitled to cease purchasing Goods and Services from Upstairs.
The Service Agreement is not an exclusive service or supply agreement.
A power, right or remedy may only be waived in writing and signed by the Party to be bound by the waiver. The non-exercise of, or delay in exercising, any power, right or remedy is not a waiver.
Any provision of the Service Agreement which is unenforceable or illegal is deemed to not operate until it is enforceable and legal, without affecting the rest of the Service Agreement.
29. GOVERNING LAW AND JURISDICTION
The Service Agreement is governed by the law in force in Western Australia. The Parties irrevocably submit to the non-exclusive jurisdiction of the Courts of Western Australia.
In the Service Agreement:
the singular includes the plural and vice versa;
where two or more entities are named as Customer, then the obligations on each bind them jointly and severally;
“include” and derivatives thereof are not words of limitation;
a reference to a person includes that person’s legal personal representatives, successors and assigns;
if the date by which any payment must be made or notice given is not a Business Day, it must be made or given on or by the next Business Day;
where time is calculated by reference to a day or event, that day or the day of that event is excluded; and
a notice or other communication means a notice or communication in writing in the English language, sent to the email address, fax number or postal address of the recipient Party.
DOC ID: 1831173