Terms of Trade

Definitions

Australian Consumer Law means the law as set out in Schedule 2 of the Competition and Consumer Act 2010.

“Service Provider” shall mean Lazy Bear Pty Ltd ATF Lazy Bear Trust T/as theProduct, its subsidiaries and its successors and assigns or any person acting on behalf of and with the authority of Lazy Bear Pty Ltd ATF Lazy Bear Trust.

“Client” shall mean the Client (or any person acting on behalf of and with the authority of the Client) as described on any proposal, work authorisation or other form as provided by the Service Provider to the Client.

“Guarantor” means that person (or persons), or entity, who agrees to be liable for the debts of the Client on a principal debtor basis.

“Services” shall mean all Services supplied by the Service Provider to the Client and includes any advice or recommendations.

“Price” shall mean the price payable for the Services as agreed between the Service Provider and the Client in accordance with Price and Payment section of this contract.

“Price” means the price as per the Service Provider’s Proposals and Invoices – and the latter will have precedence.

Acceptance

Any instructions received by the Service Provider from the Client for the supply of Services and/or the Client’s acceptance of Services supplied by the Service Provider shall constitute acceptance of the terms and conditions contained herein.

Where more than one Client has entered into this agreement, the Clients shall be jointly and severally liable for all payments of the Price.

Upon acceptance of these terms and conditions by the Client the terms and conditions are binding and can only be amended with the written consent of the Service Provider.

The Client shall give the Service Provider not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client or any change in the Client’s name and/or any other change in the Client’s details (including but not limited to, changes in the Client’s address, facsimile number, or business practice). The Client shall be liable for any loss incurred by the Service Provider as a result of the Client’s failure to comply with this clause.

These terms and conditions are to be read in conjunction with the Service Provider’s Proposal. If there are any inconsistencies between the two documents, then the terms and conditions contained in this document shall prevail.

Price and Payment

At the Service Provider’s sole discretion, the Price shall be either:

As indicated on invoices provided by the Service Provider to the Client in respect of Services supplied; or

the Service Provider’s proposed Price (subject to ‘Service Provider reserves the right to change the Price’) which shall be binding upon the Service Provider provided that the Client shall accept the Service Provider’s Proposal in writing within fourteen (14) days.

The Service Provider reserves the right to change the Price in the event of a variation to the Service Provider’s Proposal.

At the Service Provider’s sole discretion, a deposit may be required.

Any Website Development provided by the Service Provider requires a full deposit – cleared funds – prior to the commencement of any work.

At the Service Provider’s sole discretion payment for approved Clients shall be made by instalments in accordance with the Service Provider’s payment schedule.

Additional Payment Plan Terms and Conditions:

Any additional labour will be invoiced weekly, due 14 days from invoice date.

Late fees applicable on all invoices that are not finalised within 72 hours of their due date (that is, 17 days after invoice was sent).

Services may be disrupted/suspended if payment (including any applicable late fees) is not received within 7 days of due date (that is, 21 days after invoice was sent).

Two sequential default payments on payment plans will result in the payment plan being cancelled. Website/service will then be suspended until full remaining balance has been finalised.

Time for payment for the Services shall be of the essence and will be stated on the invoice or any other forms. If no time is stated, then payment shall be due upon receipt of the invoice.

Payment will be made by cash, or bank cheque, or by credit card via PayPal (at the Provider’s discretion in some circumstances a surcharge of up to two and a half percent (2.5%) of the Price may be charged), or by direct deposit, or by any other method as agreed to between the Client and the Service Provider. Fees and charges may be applicable if payments are made outside of the listed methods.

GST and other taxes and duties that may be applicable shall be added to the Price except when they are expressly included in the Price.

Delivery of Services

At the Service Provider’s sole discretion delivery of the Services shall take place when the Client takes possession of the Services at the Client’s nominated address and other such places that are appropriate and are mutually agreed to by the Service Provider and the Client.

The Client shall make all arrangements necessary to take delivery of the Services whenever they are tendered for delivery. In the event that the Client is unable to take delivery of the Services as arranged then the Service Provider shall be entitled to charge a reasonable fee for redelivery.

The failure of the Service Provider to deliver shall not entitle either party to treat this contract as repudiated.

The Service Provider shall not be liable for any loss or damage whatever due to failure by the Service Provider to deliver the Services (or any of them) promptly or at all.

The Service Provider owns all rights to all website development and intellectual property until Client has settled account in full.

Any access by the Client to the website development is at the Service Provider’s discretion and access to login details, cPanel access and any other access the Service Provider deems, shall be limited or unavailable until Client has settled account in full.

Risk

If the Service Provider retains ownership of the Services nonetheless, all risk for the Services passes to the Client on delivery.

Title

The Service Provider and the Client agree that ownership of the Services shall not pass until:

  • The Client has paid the Service Provider all amounts owing for the particular Services; and
  • the Client has met all other obligations due by the Client to the Service Provider in respect of all contracts between the Service Provider and the Client.
  • Receipt by the Service Provider 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 the Service Provider’s ownership or rights in respect of the Services shall continue.

It is further agreed that:

Until such time as ownership of the Services shall pass from the Service Provider to the Client the Service Provider may give notice in writing to the Client to return the Services or any of them to the Service Provider. Upon such notice the rights of the Client to obtain ownership or any other interest in the Services shall cease.

If the Client fails to return the Services to the Service Provider then the Service Provider or the Service Provider’s agent may enter upon and into land and premises owned, occupied or used by the Client, or any premises as the invitee of the Client, where the Services are situated and take possession of the Services.

Client’s Disclaimer

The Client hereby disclaims any right to rescind, or cancel the contract with the Service Provider or to sue for damages or to claim restitution arising out of any inadvertent misrepresentation made to the Client by the Service Provider and the Client acknowledges that the Services are bought relying solely upon the Client’s skill and judgment.

Errors and Omissions

The Client shall inspect the Services on delivery and shall within seven (7) days of delivery (time being of the essence) notify the Service Provider of any alleged defect, errors, omissions or failure to comply with the description or proposal. The Client shall afford the Service Provider an opportunity to review the Services within a reasonable time following delivery if the Client believes the Services are defective in any way. If the Client shall fail to comply with these provisions, the Services shall be conclusively presumed to be in accordance with the terms and conditions and free from any defect. For defective Services, which the Service Provider has agreed in writing that the Client is entitled to reject, the Service Provider’s liability is limited to either (at the Service Provider’s discretion) replacing the Services or rectify the Services.

Australian Consumer Law means the law as set out in Schedule 2 of the Competition and Consumer Act 2010.

Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the Competition and Consumer Act 2010, except to the extent permitted by those Acts where applicable.

Intellectual Property

Where the Service Provider has designed, drawn, written or created documents, graphics, coded material, web design or other creative works for the Client, then the copyright in those designs and drawings and documents shall remain vested in the Service Provider, and shall only be used by the Client at the Service Provider’s discretion.

The Client warrants that all designs or instructions to the Service Provider will not cause the Service Provider to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify the Service Provider against any action taken by a third party against the Service Provider in respect of any such infringement.

Default & Consequences of Default

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 one half percent (2.5%) per calendar month and such interest shall compound monthly at such a rate after as well as before any judgment.

If the Client defaults in payment of any invoice when due, the Client shall indemnify the Service Provider from and against all costs and disbursements incurred by the Service Provider in pursuing the debt including legal costs on a solicitor and own client basis and the Service Provider’s collection agency costs.

Without prejudice to any other remedies the Service Provider may have, if at any time the Client is in breach of any obligation (including those relating to payment), the Service Provider may suspend or terminate the supply of Services to the Client and any of its other obligations under the terms and conditions. The Service Provider will not be liable to the Client for any loss or damage the Client suffers because the Service Provider has exercised its rights under this clause.

If any account remains overdue for 72 hours from due date a late fee of ($10 Inc. GST) will be added to invoice. If after twenty-one days (21) days, then an amount of the greater of twenty dollars ($20.00 Inc. GST) or ten percent (10.00%) of the amount overdue (up to a maximum of two hundred dollars ($200.00)) shall be levied for administration fees which sum shall become immediately due and payable.

Without prejudice to the Service Provider’s other remedies at law the Service Provider shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to the Service Provider shall, whether or not due for payment, become immediately payable in the event that:

  • any money payable to the Service Provider becomes overdue, or in the Service Provider’s opinion the Client will be unable to meet its payments as they fall due; or
  • 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
  • a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.
Security and Charge

Despite anything to the contrary contained herein or any other rights which the Service Provider may have howsoever:

  • where the Client and/or the Guarantor (if any) is the owner of land, realty or any other asset capable of being charged, both the Client and/or the Guarantor agree to mortgage and/or charge all of their joint and/or several interest in the said land, realty or any other asset to the Service Provider or the Service Provider’s nominee to secure all amounts and other monetary obligations payable under these terms and conditions. The Client and/or the Guarantor acknowledge and agree that the Service Provider (or the Service Provider’s nominee) shall be entitled to lodge where appropriate a caveat, which caveat shall be withdrawn once all payments and other monetary obligations payable hereunder have been met.

Should the Service Provider elect to proceed in any manner in accordance with this clause and/or its sub- clauses, the Client and/or Guarantor shall indemnify the Service Provider from and against all the Service Provider’s costs and disbursements including legal costs on a solicitor and own client basis.

The Client and/or the Guarantor (if any) agree to irrevocably nominate constitute and appoint the Service Provider or the Service Provider’s nominee as the Client’s and/or Guarantor’s true and lawful attorney to perform all necessary acts to give effect to the provisions of this clause

Cancellation

The Service Provider may cancel any contract to which these terms and conditions apply or cancel delivery of Services at any time before the Services are delivered by giving written notice to the Client. On giving such notice the Service Provider shall repay to the Client any sums paid in respect of the Price. The Service Provider shall not be liable for any loss or damage whatever arising from such cancellation.

In the event that the Client cancels delivery of Services the Client shall be liable for any loss incurred by the Service Provider (including, but not limited to, any loss of profits) up to the time of cancellation.

Privacy Act 1988

The Client and/or the Guarantor/s agree for the Service Provider to obtain from a credit reporting agency a credit report containing personal credit information about the Client and Guarantor/s in relation to credit provided by the Service Provider.

The Client and/or the Guarantor/s agree that the Service Provider may exchange information about the Client and the Guarantor/s with those credit providers either named as trade referees by the Client or named in a consumer credit report issued by a credit reporting agency for the following purposes:

  • to assess an application by the Client; and/or
  • to notify other credit providers of a default by the Client; and/or
  • 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
  • to assess the credit worthiness of Client and/or Guarantor/s.

The Client consents to the Service Provider being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).

The Client agrees that personal credit information provided may be used and retained by the Service Provider for the following purposes and for other purposes as shall be agreed between the Client and Service Provider or required by law from time to time:

  • provision of Services; and/or
  • marketing of Services by the Service Provider, its agents or distributors in relation to the Services; and/or
  • analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to provision of Services; and/or
  • processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client; and/or
  • enabling the daily operation of Client’s account and/or the collection of amounts outstanding in the Client’s account in relation to the Services.

The Service Provider may give information about the Client to a credit reporting agency for the following purposes:

  • to obtain a consumer credit report about the Client; and/or
  • allow the credit reporting agency to create or maintain a credit information file containing information about the Client.
General

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.

These terms and conditions and any contract to which they apply shall be governed by the laws of Queensland and are subject to the jurisdiction of the courts of Queensland.

The Service Provider shall be under no liability whatever to the Client for any indirect loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by the Service Provider of these terms and conditions.

In the event of any breach of this contract by the Service Provider the remedies of the Client shall be limited to damages which under no circumstances shall exceed the Price of the Services.

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 the Service Provider.

The Service Provider may license or sub-contract all or any part of its rights and obligations without the Client’s consent.

The Service Provider reserves the right to review these terms and conditions at any time. If, following any such review, there is to be any change to these terms and conditions, then that change will take effect from the date on which the Service Provider notifies the Client of such change.

Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, drought, storm or other event beyond the reasonable control of either party.

The failure by the Service Provider to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect the Service Provider’s right to subsequently enforce that provision.

It is recommended that the Client arrange adequate comprehensive Electronic Equipment/Computer Insurance including increased costs of working and data restoration costs; and/or cyber-crime / cyber- liability insurances prior to entering into this agreement.

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