1.1 “WISE MSP” means MGMF The Unknown Pty. Ltd. trading as WISE MSP, its successors and assigns or any person acting on behalf of and with the authority of MGMF The Unknown Pty Ltd.
1.2 “Client” means the person/s requesting WISE MSP to provide the Services as specified in any invoice, document or order, and if there more than one person requesting the Services is a reference to each person jointly and severally.
1.3 “Services” means all goods (which includes any files, information, printed or virtual material, samples, data, graphics or hardware) or services (which includes any advice or recommendations, integration or strategies, co-ordination, planning, analysis, hosting, technical service and support, project management and service sourcing, and any other service that WISE MSP supplies to the Client, etc.) supplied by WISE MSP to the Client at the Client’s request from time to time (where the context so permits the terms ‘Goods’ or ‘Services’ shall be interchangeable for the other).
1.4 “Price” means the price payable for the Services as agreed between WISE MSP and the Client in accordance with clause 4 of this contract.
1.5 “Web Site” means a location which is accessible on the Internet through the worldwide web, and which provides multimedia content via a graphical user interface.
1.6 “Prohibited Content” means any content on a Web Site that: (a) is, or could reasonably be considered to be, in breach of the Broadcast Services Amendment (Online Service) Act 1999 (Cth); the Competition and Consumer Act 2010 (Cth); or any other applicable law or applicable industry code; or
(b) contains, or could reasonably be considered to contain, any misrepresentations; or is, or could reasonably be considered to be, misleading or deceptive, likely to mislead or deceive or otherwise unlawful; or
(c) is, or could reasonably be considered to be, in breach of any person’s Intellectual Property Rights.
2.1 The Client is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Client places an order for, or accepts Services provided by WISE MSP.
2.2 These terms and conditions may only be amended with WISE MSP’s consent in writing and shall prevail to the extent of any inconsistency with any other document or contract between the Client and WISE MSP.
2.3 Services provided by WISE MSP are subject to availability and only on the terms and conditions of trade herein to the exclusion of anything to the contrary in the terms of the Client’s order notwithstanding that any such order is placed on terms that purport to override these terms and conditions of trade.
2.4 None of WISE MSP’s agents or representatives are authorised to make any representations, statements, conditions or contracts not expressed by the manager of WISE MSP in writing nor is WISE MSP bound by any such unauthorised statements.
2.5 Once accepted by the Client, WISE MSP’s written quotation shall be deemed to interpret correctly the Client’s instructions, whether written or verbal. Where verbal instructions only are received from the Client, WISE MSP shall not be responsible for errors or omissions due to oversight or misinterpretation of those instructions.
2.6 This contract constitutes the entire contract between WISE MSP and the Client, and the Client hereby acknowledges that no reliance is placed on any representation made by WISE MSP, but not embodied in this contract.
3. Change in Control
3.1 The Client shall give WISE MSP not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client and/or any other change in the Client’s details (including but not limited to, changes in the Client’s name, address, contact phone or fax number/s, or business practice). The Client shall be liable for any loss incurred by WISE MSP as a result of the Client’s failure to comply with this clause.
4. Price and Payment
4.1 At WISE MSP’s sole discretion the Price shall be either: (a) as indicated on any invoice provided by WISE MSP to the Client; or
(b) the Price as at the date of provision of the Services according to WISE MSP’s current hourly rate schedule; or
(c) WISE MSP’s quoted price (subject to clause 4.2) which will be valid for the period stated in the quotation or otherwise for a period of seven (7) days, excluding promotional offers.
4.2 Additional and/or Varied Services: (a) WISE MSP agrees that there will be no charge in the preparation of the initial quotation, which may include Client discussions, project scoping and business analysis, etc. However, in some instances the aforementioned services may be charged to the Client additionally (at WISE MSP’s sole discretion).
(b) WISE MSP reserves the right to amend the Price where there is any variation to the accepted plan of scheduled Services, or instructions/specifications, which will be charged for on the basis of WISE MSP’s rate schedule and will be shown as variations on the invoice. Payment for all variations must be made in full at their time of completion.
(c) Where the performance of any contract with the Client requires WISE MSP to obtain products and/or services from a third party, the contract between WISE MSP and the Client shall incorporate, and shall be subject to, the conditions of supply of such products and/or services to WISE MSP, and the Client shall be liable for the cost in full including WISE MSP’s margin of such products and/or services.
4.3 Time for payment for the Services being of the essence, the Price will be payable by the Client on the date/s determined by WISE MSP, which may be: (a) the date specified on any invoice or other form as being the date for payment; or
(b) failing any notice to the contrary, the date which is fourteen (14) days following the date of any invoice given to the Client by WISE MSP.
4.4 Payment may be made by cash, cheque, bank cheque, credit card (Visa and MasterCard only), or by any other method as agreed to between the Client and WISE MSP. If payment is made by credit card, a 2.5% surcharge will apply.
4.5 Unless otherwise stated the Price does not include GST. In addition to the Price the Client must pay to WISE MSP an amount equal to any GST WISE MSP must pay for any provision of Services by WISE MSP under this or any other contract. The Client must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Client pays the Price. In addition the Client must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.
4.6 The Client acknowledges and agrees that the Client’s obligations to WISE MSP for the provision of the Services shall not cease (and the ownership of any Goods as per clause 8 shall not pass) until: (a) the Client has paid WISE MSP all amounts owing for the particular Services; and
(b) the Client has met all other obligations due by the Client to WISE MSP in respect of all contracts between WISE MSP and the Client.
4.7 Receipt by WISE MSP of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised and until then WISE MSP’s ownership or rights in respect of the Services, and this contract, shall continue.
5. Provision of Goods and/or Services
5.1 Any time specified by WISE MSP for provision of the Services is an estimate only and WISE MSP will not be liable for any loss or damage incurred by the Client as a result of provision being late. However both parties agree that they shall make every endeavour to enable the Services to be provided at the time and place as was arranged between both parties. In the event that WISE MSP is unable to provide the Services as agreed solely due to any action or inaction of the Client, then WISE MSP shall be entitled to: (a) charge the Client additionally for re-providing the Services at a later time and date; or (b) subject to clause 14.2, terminate the contract.
5.2 Provision of the Goods is taken to occur at the time that WISE MSP (or WISE MSP’s nominated carrier) delivers the Goods to the Client’s nominated address even if the Client is not present at the address. At WISE MSP’s sole discretion, the cost of delivery is included in the Price, unless otherwise stated.
5.3 The Client must take delivery, by receipt of the Goods, whenever they are tendered for delivery. In the event that the Client is unable to take delivery of the Goods as arranged then WISE MSP shall be entitled to charge a reasonable fee for redelivery and/or storage.
5.4 WISE MSP may deliver the Goods in separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.
5.5 In the event the Goods ordered by the Client are unavailable, WISE MSP may (at their sole discretion) substitute Goods with similar specifications and quality. The Client shall be entitled to return these Goods to WISE MSP within five (5) business days of the date of delivery and WISE MSP will credit the Client the Price of the Goods less any expenses incurred (including, but not limited to, delivery costs) by WISE MSP.
6. Risk and Limitation of Liability for Client Data
6.1 If WISE MSP retains ownership of the Goods nonetheless, all risk for the Goods passes to the Client when the Goods are provided by WISE MSP to the Client. It shall be the Client’s responsibility to ensure that the Goods are insured, adequately or at all.
6.2 If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Client, WISE MSP is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by WISE MSP is sufficient evidence of WISE MSP’s rights to receive the insurance proceeds without the need for any person dealing with WISE MSP to make further enquiries.
6.3 The Client acknowledges and agrees that WISE MSP shall not be held responsible or liable for: (a) anything related to the Web Site, Hosting Services or any other Services provided;
(b) any supplied content breaching any Acts, legislation or regulations, unless due to the negligence of WISE MSP;
(c) any loss, corruption, or deletion of files or data (including, but not limited to software programmes) resulting from illegal hacking or Services provided by WISE MSP. WISE MSP will endeavour to restore the Web Site, files or data (at the Client’s cost), and it is the sole responsibility of the Client to back-up any data which they believe to be important, valuable, or irreplaceable prior to WISE MSP providing the Services. The Client accepts full responsibility for the Client’s software and data and WISE MSP is not required to advise or remind the Client of appropriate backup procedures;
(d) any loss or damage to the Client’s software or hardware caused by any ‘updates’.
6.4 The Client acknowledges that any advice or recommendations by WISE MSP are provided on the basis of WISE MSP’s industry knowledge and experience only and shall not be deemed as specialist advice.
6.5 WISE MSP, its directors, agents or employees will not be liable in any way for any form of loss or damage of any nature whatsoever suffered, whether arising directly or indirectly, by the Client or any person related to or dealing with the Client out of, in connection with or reasonably incidental to the provision of the Services by WISE MSP to the Client.
6.6 The Services are provided on an “as is, as available” basis. WISE MSP specifically disclaims any other warranty, express or implied, including any warranty of merchantability or fitness for a particular purpose.
6.7 Public Access: (a) The Client understands that by placing information on the Web Site, such information may be accessible to all internet users. WISE MSP do not (unless expressly requested by the Client) limit or restrict access to such information, nor protect such information from copyright infringement or other wrongful activity. The Client assumes full responsibility for their use of the Services, and it is the Client’s sole responsibility to evaluate the accuracy, completeness and usefulness or all opinions, advice, services, and other information, and the quality and merchantability of all Services provided by WISE MSP, or on the internet generally.
7. Hosting Services
7.1 “Live Date” means the date in which WISE MSP provides the Hosting Services as per initial acceptance of WISE MSP’s quotation.
7.2 Hosting Services shall only be used by the Client for lawful purposes. Any use which violates any applicable national or international laws is strictly prohibited (e.g. posting or transmitting any unlawful, threatening, abusive, libellous, defamatory, obscene, offensive, indecent, pornographic, profane, or otherwise objectionable information of any kind – including, but not limited to, any transmission constituting or encouraging conduct that would constitute a criminal offense or give rise to civil liability).
7.3 Term: (a) The Client is required to pay a non-refundable annual fee for the Hosting Services, which is stipulated via WISE MSP’s quotation and is due and payable as per the payment terms stated therein. This fee excludes domain registrations and SSL Certificates, and where the Client is changing from another hosting provider the install and set-up of the Hosting Service on WISE MSP’s servers, which shall be charged to the Client additionally. WISE MSP may adjust the annual fee from time to time upon providing one (1) month’s written notice to the Client. Renewal of the Hosting Services will be billed to the Client one (1) month prior the anniversary of the Term, and annually thereafter.
(b) The Hosting Services may be terminated by way of the Client providing WISE MSP with a minimum of three (3) months written notice prior to the current anniversary of the Term. If no notice is given in accordance with this clause, the Client shall be liable for the full amount of the annual fee for Hosting Services for the current yearly Term.
7.4 WISE MSP will, at its sole cost and expense: (a) host the agreed service on WISE MSP’s servers;
(b) ensure that from the Live Date: (i) sufficient capacity is maintained on WISE MSP’s Hosting Platform server to enable users access to the Service in a timely manner;
(ii) the Service is accessible to users in accordance with the agreed service levels (subject to reasonable downtime for server maintenance which has been notified to the Client prior to the commencement of the downtime.
(c) provide the Client with reasonable access to the Web Site to perform maintenance services.
7.5 WISE MSP will not:
(a) alter or amend, or permit any person to alter or amend the data without the written consent of the Client;
(b) post or display any advertisement, sponsorship or promotion without the written consent of the Client;
(c) use any user data for marketing, referral or other purposes except as expressly authorised by this contract;
(d) sub-licence, rent, time-share, lease, lend or grant any rights to use the Hosting Service; or
(e) assign, transfer or authorise anyone else to exercise the rights in any licence granted pursuant to this contract.
7.6 WISE MSP will make best efforts to ensure that the Client receives continual and uninterrupted Services (including network or hosting servers) during the term of this contract, however WISE MSP does not in any way warrant or otherwise guarantee the availability of the Services, which shall be subject to regularly scheduled maintenance cycles, and many events/circumstances beyond the control of WISE MSP. In no event though, shall WISE MSP be liable to the Client for damages (including loss of income) resulting from or in relation to any failure or delay (including server downtime, programming errors, lack of connection or slow connection) of WISE MSP to provide Services under this contract, or any loss of data, if such delays or failures are due to circumstances beyond our control. Such a failure or delay shall not constitute a default under this contract.
7.7 WISE MSP may, at their sole discretion, limit or deny access to the Services is, in the judgement of WISE MSP, such limitations or denials of access are required to assure the security of the network, the integrity of the network structure, or to prevent damage to the network.
7.8 Client’s Obligations:
(a) The Client will, at its sole cost and expense: (i) develop and maintain the Web Site;
(ii) provide the content to WISE MSP, in such form as reasonably prescribed by WISE MSP from time to time, and hereby grants WISE MSP a non-exclusive, worldwide, irrevocable licence to use such content for the purposes of hosting the Web Site;
(iii) do all things reasonably necessary to enable WISE MSP to host the Web Site;
(iv) ensure that content supplied to WISE MSP does not contain Prohibited Content, a link to any web site that contains Prohibited Content, or any viruses, trojan horses, worms, time bombs, cancel bots or any other software program or routine designed for or capable of interfering with the operation of the Hosting Services.
(b) The Client will not: (i) logon to an account that the Client is not authorised to access;
(ii) access data or take any action to obtain services not intended for the Client;
(iii) attempt to probe, scan or test the vulnerability of any system, subsystem or network;
(iv) tamper, hack, modify or otherwise corrupt or breach security or authenticity measures without proper authorisation;
(v) transmit any material outlined in clause 7.8(a)(iv);
(vi) do anything that prevents or hinders WISE MSP from providing Hosting Services to any other person.
(c) The Client acknowledges that spamming (i.e. the sending of unsolicited email), email address cultivation, or any unauthorised collecting of email addresses without prior notification of the email address owner is strictly prohibited.
7.9 Network Traffic: (a) Network traffic shall be measured by WISE MSP and may include all forms of traffic to and from the Hosting Service, WISE MSP reserve the right to charge excess usage fees or to suspend Hosting Services (at any time and without notice to the Client) for what it deems to be excessive traffic usage.
7.10 Limitation of Liability for Hosting Services (a) in consideration of clause 18.3, in the event the Hosting Services provided to the Client are disrupted or malfunction for any reason, WISE MSP’s liability shall be limited to damages which under no circumstances shall exceed the amount due and payable by the Client to WISE MSP for the Hosting Services during the period of disruption or malfunction.
8.1 It is agreed that:
(a) until ownership of the Goods passes to the Client in accordance with clause 4.6, that the Client is only a bailee of the Goods and must return the Goods to WISE MSP on request.
(b) the Client holds the benefit of the Client’s insurance of the Goods on trust for WISE MSP and must pay to WISE MSP the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed.
(c) the Client must not sell, dispose, or otherwise part with possession of the Goods other than in the ordinary course of business and for market value. If the Client sells, disposes or parts with possession of the Goods then the Client must hold the proceeds of any such act on trust for WISE MSP and must pay or deliver the proceeds to WISE MSP on demand.
(d) the Client should not convert or process the Goods or intermix them with other goods but if the Client does so then the Client holds the resulting product on trust for the benefit of WISE MSP and must sell, dispose of or return the resulting product to WISE MSP as it so directs.
(e) the Client irrevocably authorises WISE MSP to enter any premises where WISE MSP believes the Goods are kept and recover possession of the Goods.
(f) WISE MSP may recover possession of any Goods in transit whether or not delivery has occurred.
(g) the Client shall not charge or grant an encumbrance over the Goods nor grant nor otherwise give away any interest in the Goods while they remain the property of WISE MSP.
(h) WISE MSP may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Client.
9. Personal Property Securities Act 2009 (“PPSA”)
9.1 In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.
9.2 Upon assenting to these terms and conditions in writing the Client acknowledges and agrees that these terms and conditions constitute a security agreement for the purposes of the PPSA and creates a security interest in all Goods and/or collateral (account) – being a monetary obligation of the Client to WISE MSP for Services – that have previously been provided, and that will be provided in the future, by WISE MSP to the Client.
9.3 The Client undertakes to: (a) promptly sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which WISE MSP may reasonably require to; (i) register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;
(ii) register any other document required to be registered by the PPSA; or
(iii) correct a defect in a statement referred to in clause 9.3(a)(i) or 9.3(a)(ii);
(b) indemnify, and upon demand reimburse, WISE MSP for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register established by the PPSA or releasing any registration made thereby;
(c) not register a financing change statement in respect of a security interest without the prior written consent of WISE MSP;
(d) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods and/or collateral (account) in favour of a third party without the prior written consent of WISE MSP.
9.4 WISE MSP and the Client agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.
9.5 The Client waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
9.6 The Client waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
9.7 Unless otherwise agreed to in writing by WISE MSP, the Client waives their right to receive a verification statement in accordance with section 157 of the PPSA.
9.8 The Client must unconditionally ratify any actions taken by WISE MSP under clauses 9.3 to 9.5.
9.9 Subject to any express provisions to the contrary nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.
10. Defects, Warranties and the Competition and Consumer Act 2010 (CCA)
10.1 The Client must inspect WISE MSP’s Services on completion (Goods on delivery) and must within seven (7) days notify WISE MSP in writing of any evident defect in the Services provided (including WISE MSP’s workmanship) or of any other failure by WISE MSP to comply with the description of, or quote for, the Services which WISE MSP was to provide. The Client must notify any other alleged defect in WISE MSP’s Services as soon as is reasonably possible after any such defect becomes evident. Upon such notification the Client must allow WISE MSP to review the Services that were provided.
10.2 Under applicable State, Territory and Commonwealth LIPIC (including, without limitation the CCA), certain statutory implied guarantees and warranties (including, without limitation the statutory guarantees under the CCA) may be implied into these terms and conditions (Non-Excluded Guarantees).
10.3 WISE MSP acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.
10.4 Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, WISE MSP makes no warranties or other representations under these terms and conditions including, but not limited to, the quality or suitability of the Services. WISE MSP’s liability in respect of these warranties is limited to the fullest extent permitted by law.
10.5 If the Client is a consumer within the meaning of the CCA, WISE MSP’s liability is limited to the extent permitted by section 64A of Schedule 2.
10.6 If WISE MSP is required to rectify, re-provide, or pay the cost of re-providing the Services under this clause or the CCA, but is unable to do so, then WISE MSP may refund any money the Client has paid for the Services but only to the extent that such refund shall take into account the value of Services which have been provided to the Client which were not defective.
10.7 If the Client is not a consumer within the meaning of the CCA, WISE MSP’s liability for any defective Services is: (a) limited to the value of any express warranty or warranty card provided to the Client by WISE MSP at WISE MSP’s sole discretion;
(b) otherwise negated absolutely.
10.8 Notwithstanding clauses 10.1 to 10.7 but subject to the CCA, WISE MSP shall not be liable for any defect or damage which may be caused or partly caused by or arise as a result of: (a) the Client failing to properly maintain or store the Services;
(b) the Client using the Services for any purpose other than that for which they were designed;
(c) the Client continuing to use any Services after any defect became apparent or should have become apparent to a reasonably prudent operator or user;
(d) interference with the Services by the Client or any third party without WISE MSP’s prior approval;
(e) the Client failing to follow any instructions or guidelines provided by WISE MSP;
(f) fair wear and tear (including the fading of inks), any accident, or act of God.
11. Intellectual Property Rights
11.1 Where WISE MSP has designed, created or developed Services for the Client, then the copyright in those Services shall remain the property of WISE MSP, and the Client undertakes to acknowledge WISE MSP’s designs (etc.) in the event that the Services are utilised in advertising or marketing material by the Client.
11.2 The Client warrants that all designs, specifications or instructions given to WISE MSP will not cause WISE MSP to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify WISE MSP against any action taken by a third party against WISE MSP in respect of any such infringement.
11.3 The Client agrees that WISE MSP may (at no cost) use for the purposes of marketing or entry into any competition, any Services which WISE MSP has created for, and/or provided to, the Client.
12. Default and Consequences of Default
12.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at WISE MSP’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
12.2 If the Client owes WISE MSP any money the Client shall indemnify WISE MSP from and against all costs and disbursements incurred by WISE MSP in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, WISE MSP’s contract default fee, and bank dishonour fees).
12.3 Without prejudice to any other remedies WISE MSP may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions WISE MSP may suspend or terminate the provision of Services to the Client. WISE MSP will not be liable to the Client for any loss or damage the Client suffers because WISE MSP has exercised its rights under this clause.
12.4 Without prejudice to WISE MSP’s other remedies at law WISE MSP shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to WISE MSP shall, whether or not due for payment, become immediately payable if: (a) any money payable to WISE MSP becomes overdue, or in WISE MSP’s opinion the Client will be unable to make a payment when it falls due;
(b) the Client becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.
13.1 The Client acknowledges that WISE MSP may, from time to time, disclose certain confidential information and documentation of WISE MSP relating to the Services, their marketing, use maintenance and software, including technical specifications. The Client must use this confidential information solely for the purposes contemplated under any relevant sales contract and the Client must not at any time disclose, whether directly or indirectly to any third party this confidential information. These obligations on the part of the Client do not apply to any information which is otherwise public knowledge within the public domain or which is required to be disclosed by law.
14. Cancellation and Termination 14.1 WISE MSP may cancel these terms and conditions or cancel provision of the Services at any time before the Services are provided by giving written notice. WISE MSP shall not be liable for any loss or damage whatever arising from such cancellation.
14.2 At WISE MSP’s sole discretion the Client may cancel provision of the Services. In the event that the Client cancels provision of the Services the Client shall be liable for any costs incurred by WISE MSP up to the time of cancellation. Notice of termination must be provided in writing thirty (30) days prior to cancellation, unless otherwise agreed to. Cancellation of orders for special or non-catalogue Goods will definitely not be accepted, once these orders have been placed.
14.3 Should the Client, for any reason, cause the Services to be delayed for more than three (3) months after the acceptance date, this contract will be terminated by WISE MSP (at their sole discretion) and all Services completed, but not billed or paid, will be payable in full within fourteen (14) days from the date of the submitted invoice.
14.4 If the Client fails to comply with any of the provisions of this contract and does not rectify such non-compliance within seven (7) days of WISE MSP giving notice either in writing, via fax or email, then WISE MSP may without prejudice to any other rights or remedies, and without being liable to the Client for any loss or damage that may result, give notice to the Client terminating their right to use the Web Site, Software and Services. Upon termination of the contract, the Client shall lose all right to use the Web Site and products, and shall forthwith deliver the Goods to WISE MSP and destroy all copies made. The Client shall certify in writing that the copies have been destroyed.
14.5 In the event the Services are terminated as per clauses 14.2, 14.4 or 7.3(b), the Services can be re-instated under a new contract at the prevailing rates; however no credits or discounts will be granted, and reinstatement costs shall apply.
15. Privacy Act 1988
15.1 The Client agrees for WISE MSP to obtain from a credit reporting body (CRB) a credit report containing personal credit information (e.g. name, address, D.O.B, occupation, previous credit applications, credit history) about the Client in relation to credit provided by WISE MSP.
15.2 The Client agrees that WISE MSP may exchange information about the Client with those credit providers and with related body corporates for the following purposes: (a) to assess an application by the Client; and/or
(b) to notify other credit providers of a default by the Client; and/or
(c) to exchange information with other credit providers as to the status of this credit account, where the Client is in default with other credit providers; and/or
(d) to assess the creditworthiness of the Client including the Client’s repayment history in the preceding two years.
15.3 The Client consents to WISE MSP being given a consumer credit report to collect overdue payment on commercial credit.
15.4 The Client agrees that personal credit information provided may be used and retained by WISE MSP for the following purposes (and for other agreed purposes or required by): (a) the provision of Services; and/or
(b) analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to the provision of Services; and/or
(c) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client; and/or
(d) enabling the collection of amounts outstanding in relation to the Services.
15.5 WISE MSP may give information about the Client to a CRB for the following purposes: (a) to obtain a consumer credit report;
(b) allow the CRB to create or maintain a credit information file about the Client including credit history.
15.6 The information given to the CRB may include: (a) personal information as outlined in 15.1 above;
(b) name of the credit provider and that WISE MSP is a current credit provider to the Client;
(c) whether the credit provider is a licensee;
(d) type of consumer credit;
(e) details concerning the Client’s application for credit or commercial credit (e.g. date of commencement/termination of the credit account and the amount requested);
(f) advice of consumer credit defaults, overdue accounts, loan repayments or outstanding monies which are overdue by more than sixty (60) days and for which written notice for request of payment has been made and debt recovery action commenced or alternatively that the Client no longer has any overdue accounts and WISE MSP has been paid or otherwise discharged and all details surrounding that discharge(e.g. dates of payments);
(g) information that, in the opinion of WISE MSP, the Client has committed a serious credit infringement;
(h) advice that the amount of the Client’s overdue payment is equal to or more than one hundred and fifty dollars ($150).
15.7 The Client shall have the right to request (by e-mail) from WISE MSP: (a) a copy of the information about the Client retained by WISE MSP and the right to request that WISE MSP correct any incorrect information; and
(b) that WISE MSP does not disclose any personal information about the Client for the purpose of direct marketing.
15.8 WISE MSP will destroy personal information upon the Client’s request (by e-mail) or if it is no longer required unless it is required in order to fulfil the obligations of this contract or is required to be maintained and/or stored in accordance with the law.
15.9 The Client can make a privacy complaint by contacting WISE MSP via e-mail. WISE MSP will respond to that complaint within seven (7) days of receipt and will take all reasonable steps to make a decision as to the complaint within thirty (30) days of receipt of the complaint. In the event that the Client is not satisfied with the resolution provided, the Client can make a complaint to the Information Commissioner at www.oaic.gov.au.
16. Limitation of Liability and Indemnity
16.1 The Client agrees to indemnify WISE MSP, it’s employees, agents and affiliates (and their employees and agents) against any action, claim, loss or expense arising from the Services, or cancellation, or failure to provide the Services, and all costs, losses and expenses suffered or incurred by WISE MSP, its employees, agents and affiliates (and their employees and agents) as a result of any breach by the Client of these conditions or any other contract between the Client and WISE MSP.
16.2 The Client acknowledges that, due to the nature of the Services, technical difficulties may arise which could prevent the provision thereof; and the Client, therefore, agrees to indemnify WISE MSP against any costs or losses incurred by the Client as a result of this.
17. Security and Charge
17.1 In consideration of WISE MSP agreeing to provide the Services, the Client charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Client either now or in the future, to secure the performance by the Client of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
17.2 The Client indemnifies WISE MSP from and against all WISE MSP’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising WISE MSP’s rights under this clause.
17.3 The Client irrevocably appoints WISE MSP and each director of WISE MSP as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 17 including, but not limited to, signing any document on the Client’s behalf.
18.1 The failure by WISE MSP to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect WISE MSP’s right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
18.2 These terms and conditions and any contract to which they apply shall be governed by the laws of New South Wales, the state in which WISE MSP has its principal place of business, and are subject to the jurisdiction of the Courts in that state.
18.3 Subject to clause 10, WISE MSP shall be under no liability whatsoever to the Client for any expenses, claims, costs (including but not limited to legal fees and commissions), damages suffered or incurred by WISE MSP, or indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by WISE MSP of these terms and conditions, caused by any failure by the Client to comply with their obligations under this contract, or that arise from any claim relating to the Services by any person that the Client authorises to use the Services, or where due to server downtime or programming errors (alternatively WISE MSP’s
liability shall be limited to damages which under no circumstances shall exceed the Price).
18.4 The Client shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Client by WISE MSP nor to withhold payment of any invoice because part of that invoice is in dispute.
18.5 WISE MSP may license or sub-contract all or any part of its rights and obligations without the Client’s consent.
18.6 The Client agrees that WISE MSP may amend these terms and conditions at any time. If WISE MSP makes a change to these terms and conditions, then that change will take effect from the date on which WISE MSP notifies the Client of such change. The Client will be taken to have accepted such changes if the Client makes a further request for WISE MSP to provide Services to the Client.
18.7 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.
18.8 The Client warrants that it has the power to enter into this contract and has obtained all necessary authorisations to allow it to do so, it is not insolvent and that this contract creates binding and valid legal obligations on it.