1. General
1.1 The parties acknowledge these Terms and any Proposal form the Agreement between the parties and, where there is any conflict between these Terms and any Proposal, the Proposal shall take precedence.
1.2 These Terms, as updated from time to time, apply to any Services provided by GIRIH X to the Customer.
1.3 Unless agreed in writing by GIRIH X, the Agreement applies to the exclusion of all prior discussions, understandings, arrangements, conditions, warranties (written or oral, express or implied) and representations (contractual otherwise) and cannot be varied or replaced by any other terms, including the Customer’s terms and conditions of purchase (if any).
1.4 GIRIH X may vary or amend these Terms by giving the Customer reasonable notice. An update to the Terms published on GIRIH X’s website is considered by the parties to be reasonable notice of such variation or amendment.
1.5 The Customer may engage GIRIH X to carry out Services for the Customer by accepting a Proposal or where GIRIH X agrees in writing to carry out Services. If the Customer engages GIRIH X to carry out Services, that engagement will constitute acceptance of these Terms.
2. Pricing
2.1 The Customer must pay the Fees, as set out in the Tax Invoice provided to the Customer, in consideration for the provision of the Services.
2.2 Prices quoted for the supply of goods and services exclude GST and any other taxes or duties imposed on or in relation to the goods and services.
2.3 If the Customer requests any variation to the Services, GIRIH X may increase the price to account for such variation.
2.4 Where there is any change in the cost incurred by GIRIH X in relation to the Services, GIRIH X may vary its price to take account of any such change, by giving reasonable notice to the Customer, however this will not affect orders already accepted by GIRIH X, unless by agreement with the Customer.
3. Payment
3.1 Unless otherwise agreed in writing, and subject to clause 3.2, full payment for the Services must be made within seven (7) days of the date of GIRIH X’s invoice.
3.2 GIRIH X reserves the right to require payment in full on completion of the Services.
3.3 Payment terms may be revoked or amended at GIRIH X’s sole discretion immediately upon giving the Customer written notice.
3.4 The time for payment is of the essence.
4. Payment Default
4.1 If the Customer defaults in payment by the due date of any amount payable to GIRIH X, then all money which would become payable by the Customer to GIRIH X at a later date on any account, becomes immediately due and payable without the requirement of any notice to the Customer and GIRIH X may, without prejudice to any of its other accrued or contingent rights:
(a) charge the Customer interest on any sum due at the prevailing rate pursuant to the Penalty Interest Rates Act 1983 (Vic) or the period from the due date until the date of payment in full;
(b) charge the Customer for, and the Customer must indemnify GIRIH X from, all costs and expenses (including without limitation all legal costs and expenses) incurred by it resulting from the default or in taking action to enforce compliance with these Terms or to recover any goods;
(c) cease or suspend supply of any further goods or services to the Customer;
(d) by written notice to the Customer, terminate any uncompleted contract with the Customer.
4.2 Clauses 4.1(c) and 4.1(d) may also be relied on, at GIRIH X’s option:
(a) where the Customer is a natural person and becomes bankrupt or enters into any scheme of arrangement or any assignment or composition with or for the benefit of his or her creditors generally; or
(b) where the Customer is a corporation and it enters into any scheme of arrangement or any assignment or composition with or for the benefit of its creditors or any class of its creditors generally, or has a liquidator, administrator, receiver or manager or similar functionary appointed in respect of its assets, or any action is taken for, or with the view to, the liquidation (including provisional liquidation), winding up or dissolution without winding up of the Customer.
5. Performance of Agreement
5.1 Any period or date for provision of the Services stated by GIRIH X is an estimate only and not a contractual commitment.
5.2 If GIRIH X cannot complete the Services by any estimated date, it will complete the Services within a reasonable time.
6. Liability
6.1 Except as the Terms specifically state, or as contained in any express warranty provided in relation to the Services, the Terms do not include by implication any other term, condition or warranty in respect of the quality, merchantability, acceptability, fitness for purpose, condition, description, design or performance of the Services or any contractual remedy for their failure.
6.2 GIRIH X’s liability to the Customer for any Loss arising as a result of the non-performance or breach of these Terms by GIRIH X will be capped at the amount paid or payable by the Customer under these Terms in the three (3) month period prior to the date on which the liability accrued.
6.3 Subject to any legislation (including but not limited to the Competition and Consumer Act 2010 (Cth)) to the contrary, to the full extent permitted by law, all express and implied terms, conditions and warranties other than the ones set out in these Terms are excluded.
6.4 If the Customer is a consumer nothing in these Terms restricts, limits or modifies the Customer’s rights or remedies against GIRIH X for failure of a statutory guarantee under the ACL.
6.5 GIRIH X is not liable for any direct or indirect loss or any Consequential Loss or expenses suffered by the Customer or any third party, however caused, including but not limited to loss of turnover, profits, business or goodwill or any liability to any other party, except to the extent of any liability imposed by the ACL.
6.6 The Customer acknowledges:
(a) it has not relied on any service involving skill and judgement, or on any advice, recommendation, information or assistance provided by GIRIH X in relation to the Services or their use or application; and
(b) it has not made known, either expressly or by implication, to GIRIH X any purpose for which it requires the Services and it has the sole responsibility of satisfying itself that the Services are suitable for the use of the Customer.
6.7 Nothing in the Terms is to be interpreted as excluding, restricting, or modifying or having the effect of excluding, restricting or modifying the application of any State or Federal legislation applicable to the sale of goods or supply of services which cannot be excluded, restricted or modified.
7. Intellectual Property
7.1 The Customer agrees to supply to GIRIH X, and grant GIRIH X a licence to use, all information and content reasonably required by GIRIH X for the delivery of the Services and the Customer warrants to GIRIH X that GIRIH X’s use of such information and content will not breach the rights of any third party, including in relation to its Intellectual Property.
7.2 GIRIH X grants the Customer an irrevocable, non-exclusive, royalty free licence to use and reproduce any of GIRIH X’s Intellectual Property which is contained in the Services for the purposes for which the Services was created.
7.3 Notwithstanding clause 7.2, any Intellectual Property relating to the Services will remain the property of GIRIH X and the Customer must not use or allow any other party to use the Intellectual Property without GIRIH X’s prior written consent.
7.4 Each party retains all rights in relation to that party’s Background Materials.
7.5 The Intellectual Property in any Services created under these Terms vests in GIRIH X on creation.
7.6 The Customer indemnifies GIRIH X for any loss, costs or damages incurred by GIRIH X in connection with a breach of this clause 7.
8. Termination
8.1 Either party may terminate these Terms by providing at least 30 days’ written notice to the other party.
8.2 Notwithstanding clause 8.1, these Terms will terminate immediately:
(a) if a party has breached the Terms where that breach is capable of being remedied and it has failed to remedy the breach within 14 days of receiving written notice from the other party of the breach; or
(b) if a party has breached the Terms where that breach is not capable of being remedied.
8.3 Following expiry or termination of these Terms for any reason:
(a) the Customer must immediately pay GIRIH X for any Services completed up to the date of termination; and
(b) clauses 2, 3, 5, 7 and 9 and any other clauses that make provision for the continued operation of these Terms survive and remain in force.
9. Confidentiality
9.1 Except as contemplated by these Terms and to the extent required for the delivery of the Services, each party must:
(a) keep confidential, the Confidential Information of the other party and must not disclose such information to any other party without the prior written consent; and
(b) not copy or reproduce in any way the Confidential Information.
9.2 The Customer are responsible for and liable to GIRIH X in respect of the actions or omissions of the Customer’s employees, agents, contractors and consultants in relation to the disclosure of Confidential Information.
10. Dispute Resolution
10.1 In the event of a dispute between the parties, the parties agree in good faith to use all reasonable endeavours to settle the dispute. If the parties are unable to settle the dispute in good faith then the dispute will be referred to mediation as follows:
(a) the mediator will be a mediator agreed between the parties and, failing agreement within 14 days of request to do so, will be nominated by the president for the time being of the Law Society of Victoria;
(b) the parties will be jointly responsible for the fees of the mediation and each party must pay its own costs in respect of it;
(c) the parties may be legally represented; and
(d) the place of mediation will be in Melbourne, Australia but the parties may agree to hold the mediation virtually.
10.2 Notwithstanding the above, a party is not prevented from making an application to a court for an interlocutory injunction.
11. Privacy
11.1 The Customer warrants to GIRIH X that all information and materials the Customer provides to GIRIH X complies with all relevant privacy laws, including the Privacy Act 1988 (Cth).
11.2 The Customer consents to GIRIH X disclosing information about the Customer, which may include personal information, to GIRIH X’s related entities and to delivery service providers.
12. GST
12.1 If GST is imposed on any Taxable Supply under the Terms, then GIRIH X has the right to increase the purchase price payable on that Taxable Supply by an amount equal to the GST imposed.
12.2 To obtain a valid Tax Invoice the Customer must supply GIRIH X with the Customer’s ABN.
13. PPSR
13.1 The Customer agrees the agreement governed by these Terms constitutes a security agreement and creates a security interest in favour of GIRIH X in the Customer’s present and after acquired property, as security for the obligations to pay invoices under these Terms.
13.2 The Customer acknowledges it has granted a security interest under the PPSA and that GIRIH X may register this security interest on the Personal Property Securities Register over the Customer’s General Property – All Present and After Acquired Property (as defined in the PPSA).
14. Force Majeure
14.1 Where GIRIH X is unable, wholly or in part, by reason of a Force Majeure Event, to carry out any obligation under the Terms, the requirement to perform that obligation is suspended as long as the Force Majeure Event continues.
15. Relationship
15.1 Nothing contained or implied in these Terms constitutes a party the partner, agent or legal representative of the other party for any purpose, or creates any partnership, employment, agency or trust. Neither party has the authority to bind the other party in any way.
16. No waiver
16.1 Failure by GIRIH X to enforce any of the Terms should not be construed as a waiver of any of GIRIH X’s rights hereunder or a waiver of a continuing breach.
17. Entire agreement
17.1 The Terms constitute the entire agreement between the Customer and GIRIH X concerning any orders placed with GIRIH X for Services by the Customer.
18. Governing law
18.1 The Terms are governed by the laws of Victoria, Australia. The Customer agrees to submit to the exclusive jurisdiction of the courts of that jurisdiction.
19. Definitions
19.1 In the Terms:
(a) ACL means Australian Consumer Law schedule 2 of the Competition and Consumer Act 2010 (Cth) and the corresponding provisions of the relevant state and territory fair trading acts.
(b) Agreement means these Terms and Conditions and any Proposal.
(c) Background Materials (of a party) means all Intellectual Property which is:
(d) Business Day means Monday to Friday excluding public holidays in Victoria, Australia.
(e) Confidential Information of a party means any information concerning the business or practice of the party including, but not limited to, information concerning its branding, marketing, financial affairs, business development plans, trademarks, policies, logos, these Terms and any document contemplated by these Terms, and any other commercially valuable information of whatever description and any information exchanged, which is not in the public domain (other than as a result of a breach of any obligation under these Terms), and which comes to the other party or the personnel of the other party’s attention in the course of performing its obligations under these Terms.
(f) Consequential Loss means any loss, damage or costs incurred by a party or any other person that is indirect or consequential, as well as loss of revenue, loss of income; loss of business; loss of profit; loss of production; loss of or damage to goodwill or credit; loss of business reputation, future reputation or publicity; loss of use; loss of interest; losses arising from claims by third-parties; loss of or damage to credit rating; loss of anticipated savings and/or loss of or denial of opportunity.
(g) Customer means the Customer as the buyer of the Services from GIRIH X pursuant to these Terms.
(h) Expenses means fees charged by third parties in relation to the Services, it is agreed that the Customer is liable for these and where GIRIH X pays them on the Customer’s behalf, they will be on charged to the Customer through a Tax Invoice.
(i) Fees mean the fees GIRIH X charges for the Services and include Rates and Expenses.
(j) Force Majeure Event means circumstances beyond the control of GIRIH X including but not limited to an act of God, flood, earthquake, storm, cyclone, hurricane, lightning, fire, explosion, pandemic, epidemic, government restraints, war, terrorism embargo, riot or civil disturbance, strike or other labour dispute, sabotage, expropriation, confiscation or requisitioning of facilities, orders or temporary or permanent injunctions of any duly constituted court.
(k) GST has the meaning given to it in A New Tax System (Goods and Services Tax) Act 1999 (Cth) and its associated regulations, as amended.
(l) Intellectual Property means any and all intellectual and industrial property rights anywhere in the world including but not limited to rights in respect of or in connection with trademarks, service marks, patents, designs, trade secrets, know-how, copyright and analogous rights, and any associated goodwill, now or in the future, including any modifications or derivatives, and any right to register such rights.
(m) Loss means any losses, liabilities, damages, costs, interest, charges, fines, penalties or expenses (including lawyer's fees on a full indemnity basis) whether direct, indirect, special, consequential or otherwise.
(n) Minimum Commitment Period means six (6) continuous Subscription Months commencing from the start of the Subscription, as determined by GIRIH X.
(o) Personal Properties and Securities Register has the meaning given to it in the PPSA.
(p) PPSA means the Personal Properties Securities Act 2009 (Cth).
(q) Proposal means a document provided by GIRIH X and accepted by the Customer which describes the Services and the applicable Fees.
(r) GIRIH X means GIRIH X Pty Ltd (ACN 670 722 362).
(s) Rates means the standard rates and fees GIRIH X charges for Services on a time and materials basis, contained in the Proposal or otherwise provided to the Customer, as updated from time to time.
(t) Services means any Services GIRIH X performs for the Customer pursuant to these Terms and as set out in the Proposal.
(u) Subscription means the Customer’s subscription to the Services.
(v) Subscription Month means each month of the Customer’s Subscription.
(w) Tax Invoice has the meaning given to it in A New Tax System (Goods and Services Tax) Act 1999 (Cth) and its associated regulations, as amended.
(x) Taxable Supply has the meaning given to it in A New Tax System (Goods and Services Tax) Act 1999 (Cth) and its associated regulations, as amended.
(y) Terms means these Terms and Conditions.
20. Interpretation
In the Terms, the following rules apply, unless the context requires otherwise:
(a) headings are for convenience only and do not affect the interpretation of the Terms;
(b) the singular includes the plural and the plural includes the singular;
(c) any gender includes any other gender;
(d) any thing required to be done on a day that is not a Business Day, may be done on the next Business Day;
(e) reference to a person includes a natural person, corporation, partnership, association or other legal entity;
(f) reference to legislation includes that legislation as amended or modified or re-enacted;
(g) A term or definition with a capital letter which is defined in clause 19, has the meaning given in clause 19.
(h) reference to a party to the Terms includes the party's successors, permitted substitutes and permitted assigns (and, where applicable, the party's legal personal representatives); and
(i) reference to dollars or $ is to Australian currency.
1.1 The parties acknowledge these Terms and any Proposal form the Agreement between the parties and, where there is any conflict between these Terms and any Proposal, the Proposal shall take precedence.
1.2 These Terms, as updated from time to time, apply to any Services provided by GIRIH X to the Customer.
1.3 Unless agreed in writing by GIRIH X, the Agreement applies to the exclusion of all prior discussions, understandings, arrangements, conditions, warranties (written or oral, express or implied) and representations (contractual otherwise) and cannot be varied or replaced by any other terms, including the Customer’s terms and conditions of purchase (if any).
1.4 GIRIH X may vary or amend these Terms by giving the Customer reasonable notice. An update to the Terms published on GIRIH X’s website is considered by the parties to be reasonable notice of such variation or amendment.
1.5 The Customer may engage GIRIH X to carry out Services for the Customer by accepting a Proposal or where GIRIH X agrees in writing to carry out Services. If the Customer engages GIRIH X to carry out Services, that engagement will constitute acceptance of these Terms.
2. Pricing
2.1 The Customer must pay the Fees, as set out in the Tax Invoice provided to the Customer, in consideration for the provision of the Services.
2.2 Prices quoted for the supply of goods and services exclude GST and any other taxes or duties imposed on or in relation to the goods and services.
2.3 If the Customer requests any variation to the Services, GIRIH X may increase the price to account for such variation.
2.4 Where there is any change in the cost incurred by GIRIH X in relation to the Services, GIRIH X may vary its price to take account of any such change, by giving reasonable notice to the Customer, however this will not affect orders already accepted by GIRIH X, unless by agreement with the Customer.
3. Payment
3.1 Unless otherwise agreed in writing, and subject to clause 3.2, full payment for the Services must be made within seven (7) days of the date of GIRIH X’s invoice.
3.2 GIRIH X reserves the right to require payment in full on completion of the Services.
3.3 Payment terms may be revoked or amended at GIRIH X’s sole discretion immediately upon giving the Customer written notice.
3.4 The time for payment is of the essence.
4. Payment Default
4.1 If the Customer defaults in payment by the due date of any amount payable to GIRIH X, then all money which would become payable by the Customer to GIRIH X at a later date on any account, becomes immediately due and payable without the requirement of any notice to the Customer and GIRIH X may, without prejudice to any of its other accrued or contingent rights:
(a) charge the Customer interest on any sum due at the prevailing rate pursuant to the Penalty Interest Rates Act 1983 (Vic) or the period from the due date until the date of payment in full;
(b) charge the Customer for, and the Customer must indemnify GIRIH X from, all costs and expenses (including without limitation all legal costs and expenses) incurred by it resulting from the default or in taking action to enforce compliance with these Terms or to recover any goods;
(c) cease or suspend supply of any further goods or services to the Customer;
(d) by written notice to the Customer, terminate any uncompleted contract with the Customer.
4.2 Clauses 4.1(c) and 4.1(d) may also be relied on, at GIRIH X’s option:
(a) where the Customer is a natural person and becomes bankrupt or enters into any scheme of arrangement or any assignment or composition with or for the benefit of his or her creditors generally; or
(b) where the Customer is a corporation and it enters into any scheme of arrangement or any assignment or composition with or for the benefit of its creditors or any class of its creditors generally, or has a liquidator, administrator, receiver or manager or similar functionary appointed in respect of its assets, or any action is taken for, or with the view to, the liquidation (including provisional liquidation), winding up or dissolution without winding up of the Customer.
5. Performance of Agreement
5.1 Any period or date for provision of the Services stated by GIRIH X is an estimate only and not a contractual commitment.
5.2 If GIRIH X cannot complete the Services by any estimated date, it will complete the Services within a reasonable time.
6. Liability
6.1 Except as the Terms specifically state, or as contained in any express warranty provided in relation to the Services, the Terms do not include by implication any other term, condition or warranty in respect of the quality, merchantability, acceptability, fitness for purpose, condition, description, design or performance of the Services or any contractual remedy for their failure.
6.2 GIRIH X’s liability to the Customer for any Loss arising as a result of the non-performance or breach of these Terms by GIRIH X will be capped at the amount paid or payable by the Customer under these Terms in the three (3) month period prior to the date on which the liability accrued.
6.3 Subject to any legislation (including but not limited to the Competition and Consumer Act 2010 (Cth)) to the contrary, to the full extent permitted by law, all express and implied terms, conditions and warranties other than the ones set out in these Terms are excluded.
6.4 If the Customer is a consumer nothing in these Terms restricts, limits or modifies the Customer’s rights or remedies against GIRIH X for failure of a statutory guarantee under the ACL.
6.5 GIRIH X is not liable for any direct or indirect loss or any Consequential Loss or expenses suffered by the Customer or any third party, however caused, including but not limited to loss of turnover, profits, business or goodwill or any liability to any other party, except to the extent of any liability imposed by the ACL.
6.6 The Customer acknowledges:
(a) it has not relied on any service involving skill and judgement, or on any advice, recommendation, information or assistance provided by GIRIH X in relation to the Services or their use or application; and
(b) it has not made known, either expressly or by implication, to GIRIH X any purpose for which it requires the Services and it has the sole responsibility of satisfying itself that the Services are suitable for the use of the Customer.
6.7 Nothing in the Terms is to be interpreted as excluding, restricting, or modifying or having the effect of excluding, restricting or modifying the application of any State or Federal legislation applicable to the sale of goods or supply of services which cannot be excluded, restricted or modified.
7. Intellectual Property
7.1 The Customer agrees to supply to GIRIH X, and grant GIRIH X a licence to use, all information and content reasonably required by GIRIH X for the delivery of the Services and the Customer warrants to GIRIH X that GIRIH X’s use of such information and content will not breach the rights of any third party, including in relation to its Intellectual Property.
7.2 GIRIH X grants the Customer an irrevocable, non-exclusive, royalty free licence to use and reproduce any of GIRIH X’s Intellectual Property which is contained in the Services for the purposes for which the Services was created.
7.3 Notwithstanding clause 7.2, any Intellectual Property relating to the Services will remain the property of GIRIH X and the Customer must not use or allow any other party to use the Intellectual Property without GIRIH X’s prior written consent.
7.4 Each party retains all rights in relation to that party’s Background Materials.
7.5 The Intellectual Property in any Services created under these Terms vests in GIRIH X on creation.
7.6 The Customer indemnifies GIRIH X for any loss, costs or damages incurred by GIRIH X in connection with a breach of this clause 7.
8. Termination
8.1 Either party may terminate these Terms by providing at least 30 days’ written notice to the other party.
8.2 Notwithstanding clause 8.1, these Terms will terminate immediately:
(a) if a party has breached the Terms where that breach is capable of being remedied and it has failed to remedy the breach within 14 days of receiving written notice from the other party of the breach; or
(b) if a party has breached the Terms where that breach is not capable of being remedied.
8.3 Following expiry or termination of these Terms for any reason:
(a) the Customer must immediately pay GIRIH X for any Services completed up to the date of termination; and
(b) clauses 2, 3, 5, 7 and 9 and any other clauses that make provision for the continued operation of these Terms survive and remain in force.
9. Confidentiality
9.1 Except as contemplated by these Terms and to the extent required for the delivery of the Services, each party must:
(a) keep confidential, the Confidential Information of the other party and must not disclose such information to any other party without the prior written consent; and
(b) not copy or reproduce in any way the Confidential Information.
9.2 The Customer are responsible for and liable to GIRIH X in respect of the actions or omissions of the Customer’s employees, agents, contractors and consultants in relation to the disclosure of Confidential Information.
10. Dispute Resolution
10.1 In the event of a dispute between the parties, the parties agree in good faith to use all reasonable endeavours to settle the dispute. If the parties are unable to settle the dispute in good faith then the dispute will be referred to mediation as follows:
(a) the mediator will be a mediator agreed between the parties and, failing agreement within 14 days of request to do so, will be nominated by the president for the time being of the Law Society of Victoria;
(b) the parties will be jointly responsible for the fees of the mediation and each party must pay its own costs in respect of it;
(c) the parties may be legally represented; and
(d) the place of mediation will be in Melbourne, Australia but the parties may agree to hold the mediation virtually.
10.2 Notwithstanding the above, a party is not prevented from making an application to a court for an interlocutory injunction.
11. Privacy
11.1 The Customer warrants to GIRIH X that all information and materials the Customer provides to GIRIH X complies with all relevant privacy laws, including the Privacy Act 1988 (Cth).
11.2 The Customer consents to GIRIH X disclosing information about the Customer, which may include personal information, to GIRIH X’s related entities and to delivery service providers.
12. GST
12.1 If GST is imposed on any Taxable Supply under the Terms, then GIRIH X has the right to increase the purchase price payable on that Taxable Supply by an amount equal to the GST imposed.
12.2 To obtain a valid Tax Invoice the Customer must supply GIRIH X with the Customer’s ABN.
13. PPSR
13.1 The Customer agrees the agreement governed by these Terms constitutes a security agreement and creates a security interest in favour of GIRIH X in the Customer’s present and after acquired property, as security for the obligations to pay invoices under these Terms.
13.2 The Customer acknowledges it has granted a security interest under the PPSA and that GIRIH X may register this security interest on the Personal Property Securities Register over the Customer’s General Property – All Present and After Acquired Property (as defined in the PPSA).
14. Force Majeure
14.1 Where GIRIH X is unable, wholly or in part, by reason of a Force Majeure Event, to carry out any obligation under the Terms, the requirement to perform that obligation is suspended as long as the Force Majeure Event continues.
15. Relationship
15.1 Nothing contained or implied in these Terms constitutes a party the partner, agent or legal representative of the other party for any purpose, or creates any partnership, employment, agency or trust. Neither party has the authority to bind the other party in any way.
16. No waiver
16.1 Failure by GIRIH X to enforce any of the Terms should not be construed as a waiver of any of GIRIH X’s rights hereunder or a waiver of a continuing breach.
17. Entire agreement
17.1 The Terms constitute the entire agreement between the Customer and GIRIH X concerning any orders placed with GIRIH X for Services by the Customer.
18. Governing law
18.1 The Terms are governed by the laws of Victoria, Australia. The Customer agrees to submit to the exclusive jurisdiction of the courts of that jurisdiction.
19. Definitions
19.1 In the Terms:
(a) ACL means Australian Consumer Law schedule 2 of the Competition and Consumer Act 2010 (Cth) and the corresponding provisions of the relevant state and territory fair trading acts.
(b) Agreement means these Terms and Conditions and any Proposal.
(c) Background Materials (of a party) means all Intellectual Property which is:
- owned by either party, or licensed to a party by third parties prior to the commencement of the Services; or
- developed or acquired by a party independently of these Terms.
(d) Business Day means Monday to Friday excluding public holidays in Victoria, Australia.
(e) Confidential Information of a party means any information concerning the business or practice of the party including, but not limited to, information concerning its branding, marketing, financial affairs, business development plans, trademarks, policies, logos, these Terms and any document contemplated by these Terms, and any other commercially valuable information of whatever description and any information exchanged, which is not in the public domain (other than as a result of a breach of any obligation under these Terms), and which comes to the other party or the personnel of the other party’s attention in the course of performing its obligations under these Terms.
(f) Consequential Loss means any loss, damage or costs incurred by a party or any other person that is indirect or consequential, as well as loss of revenue, loss of income; loss of business; loss of profit; loss of production; loss of or damage to goodwill or credit; loss of business reputation, future reputation or publicity; loss of use; loss of interest; losses arising from claims by third-parties; loss of or damage to credit rating; loss of anticipated savings and/or loss of or denial of opportunity.
(g) Customer means the Customer as the buyer of the Services from GIRIH X pursuant to these Terms.
(h) Expenses means fees charged by third parties in relation to the Services, it is agreed that the Customer is liable for these and where GIRIH X pays them on the Customer’s behalf, they will be on charged to the Customer through a Tax Invoice.
(i) Fees mean the fees GIRIH X charges for the Services and include Rates and Expenses.
(j) Force Majeure Event means circumstances beyond the control of GIRIH X including but not limited to an act of God, flood, earthquake, storm, cyclone, hurricane, lightning, fire, explosion, pandemic, epidemic, government restraints, war, terrorism embargo, riot or civil disturbance, strike or other labour dispute, sabotage, expropriation, confiscation or requisitioning of facilities, orders or temporary or permanent injunctions of any duly constituted court.
(k) GST has the meaning given to it in A New Tax System (Goods and Services Tax) Act 1999 (Cth) and its associated regulations, as amended.
(l) Intellectual Property means any and all intellectual and industrial property rights anywhere in the world including but not limited to rights in respect of or in connection with trademarks, service marks, patents, designs, trade secrets, know-how, copyright and analogous rights, and any associated goodwill, now or in the future, including any modifications or derivatives, and any right to register such rights.
(m) Loss means any losses, liabilities, damages, costs, interest, charges, fines, penalties or expenses (including lawyer's fees on a full indemnity basis) whether direct, indirect, special, consequential or otherwise.
(n) Minimum Commitment Period means six (6) continuous Subscription Months commencing from the start of the Subscription, as determined by GIRIH X.
(o) Personal Properties and Securities Register has the meaning given to it in the PPSA.
(p) PPSA means the Personal Properties Securities Act 2009 (Cth).
(q) Proposal means a document provided by GIRIH X and accepted by the Customer which describes the Services and the applicable Fees.
(r) GIRIH X means GIRIH X Pty Ltd (ACN 670 722 362).
(s) Rates means the standard rates and fees GIRIH X charges for Services on a time and materials basis, contained in the Proposal or otherwise provided to the Customer, as updated from time to time.
(t) Services means any Services GIRIH X performs for the Customer pursuant to these Terms and as set out in the Proposal.
(u) Subscription means the Customer’s subscription to the Services.
(v) Subscription Month means each month of the Customer’s Subscription.
(w) Tax Invoice has the meaning given to it in A New Tax System (Goods and Services Tax) Act 1999 (Cth) and its associated regulations, as amended.
(x) Taxable Supply has the meaning given to it in A New Tax System (Goods and Services Tax) Act 1999 (Cth) and its associated regulations, as amended.
(y) Terms means these Terms and Conditions.
20. Interpretation
In the Terms, the following rules apply, unless the context requires otherwise:
(a) headings are for convenience only and do not affect the interpretation of the Terms;
(b) the singular includes the plural and the plural includes the singular;
(c) any gender includes any other gender;
(d) any thing required to be done on a day that is not a Business Day, may be done on the next Business Day;
(e) reference to a person includes a natural person, corporation, partnership, association or other legal entity;
(f) reference to legislation includes that legislation as amended or modified or re-enacted;
(g) A term or definition with a capital letter which is defined in clause 19, has the meaning given in clause 19.
(h) reference to a party to the Terms includes the party's successors, permitted substitutes and permitted assigns (and, where applicable, the party's legal personal representatives); and
(i) reference to dollars or $ is to Australian currency.
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