1. DEFINITIONS

1.1 “Seller” means Dexterous Systems (Aust) Pty Ltd trading as 13 Concepts (ABN 85 169 950 378), its successors, associated entities, and assigns or any person acting on behalf of and with the authority of Dexterous Systems (Aust) Pty Ltd.

1.2 “Customer” means the person identified in page 1 | successors, associated entities, and assigns or any person acting on behalf of and with the authority.

1.3 “Services” means all Services, Goods or Products supplied by the Seller to the Customer at the Customer’s request from time to time (where the context so permits the terms “Goods” or “Services” shall be interchangeable for the other).

1.4 “Solutions” means:

(a) the application or program(s) identified in the proposal;

(b) any further applications or programs from time to time notified in writing by the Seller as being subject to this Agreement; and

(c) any modified, updated, or enhanced versions of those applications or programs that the Seller may provide to the Customer in pursuant to this Agreement

1.5 “Price” means the Price payable for the Services as agreed between the Seller and the Customer in accordance with Clause 4 below.

 

  1. ACCEPTANCE

2.1 The Customer is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Customer confirms their acceptance and agreement to proceed with the build of the Solutions.

2.2 These terms and conditions may only be amended with the Seller’s consent in writing and shall prevail to the extent of any inconsistency with any other document or agreement between the Customer and the Seller.

 

  1. CHANGE IN CONTROL & NOVATION OF AGREEMENT

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

3.2 Both the Customer and the Seller are entitled to novate / transfer their rights, interests and obligations under this agreement.   Each party will use their best endeavours to ensure all rights, interests and obligations remain in force as per this agreement. Either party shall give the other party not less than fourteen (14) days prior written notice of any proposed change of ownership of the Customer or Seller and/or any other change in the Customer’s or Seller’s details (including but not limited to, changes in the Customer’s or Seller’s name, address, contact phone or email addresses or business practice).

  1. SOLUTIONS LICENCE

4.1 The Seller grants to the Customer a non-exclusive, non-transferrable licence for access to and use of the Solutions during the Term of the Agreement.

4.2 The Customer may not use the Solutions except:

(a) to the extent and for the purposes specifically authorised by this Agreement;

(b) as otherwise authorised by the Seller in writing.

4.3 The Intellectual Property Rights in any materials developed in connection with this clause shall be assigned to and vest in, the Seller, upon creation. Any customisation or translation of the Solutions is subject to final approval of the Seller before release.

4.4 The Seller and the Customer agree that right to use the Services (or Website, Solutions or other intangible property) shall not pass until:

(a) the Customer has paid the Seller all amounts owing to the Seller; and

(b) the Customer has met all of its obligations to the Seller.

 

4.5 Receipt by the Seller or 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.

4.6 All IP to customer upon final payment.

4.7 Seller will provide fill access to modify the site via Cpanel after final payment

5 SOLUTIONS UPGRADES

5.1 The Seller will endeavour to notify the Customer of substantial new Upgrades of the Solutions.

5.2 Nothing in this Agreement shall be construed as to require the Seller to:

(a) develop and release any Upgrades throughout the Term;

(b) provide upgrades if the Customer does not have a valid Agreement with the Seller; or

(c) customise the Solutions or Upgrades to meet the particular requirements of the

Customer or of the Customer’s End Users.

 

  1. PRICE AND PAYMENT

6.1 The Price shall be as per the Seller’s quoted price in the Seller’s Proposal (subject to clauses 4.1, 4.2, 4.3, 4.4) which will be valid for the period stated in the quotation or otherwise for a period of sixty (60) days. All quotes are subject to the Customer’s compliance with provision of required information and materials.

6.2 The Seller reserves the right to change the Price if a variation to the Seller’s quotation is requested. Any variation from the plan of scheduled Solutions or specifications of the Services (including but not limited to any variation as a result of increases to the Seller in the cost of taxes, levies, materials and labour or where additional works are required due to the discovery of hidden or unidentifiable difficulties, which are only discovered on commencement of the Services) will be charged for on the basis of the Seller’s quotation and will be shown as variations on the Invoice.

6.3 At the Seller’s sole discretion a non-refundable deposit may be required. Receipts will be issued upon request for any deposits made.

6.4 Time for payment for the Services being of the essence, the Price will be payable by the Customer on the date’s determined by the Seller, 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 seven (7) days following the date of any

invoice given to the Customer by the Seller; or

(c) by way of instalments/progress payments in accordance with the Seller’s Proposal.

 

6.5 Payment may be made by cash, cheque, bank cheque, electronic/on-line banking, credit card (plus a surcharge of up to two percent (2%) of the Price), or by any other method as agreed between the Customer and the Seller.

6.6 Unless otherwise stated the Price does not include GST, in addition to the Price the Customer must pay to the Seller an amount equal to any GST the Seller must pay for any supply by the Seller under this or any other agreement for the sale of Goods. The customer must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Customer pays the Price. In addition, the Customer 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.

 

  1. WARRANTIES

7.1 The Seller warrants that the media on which the Solutions are provided to the Customer will be free of defects in materials and workmanship under normal use for a period of 90 days after delivery of the Solutions to the Customer.

7.2 The Seller:

(a) warrants that the Solutions will operate substantially in accordance with and within the

parameters described in the Proposal;

(b) warrants that any Support services provided under this Agreement will be performed

with due care and diligence as to ensure that the Solutions will operate substantially

within the parameters described in the Proposal;

(c) does not warrant the Customer’s use (or any End Users of the Customer’s use) of the

Solutions will be error-free or uninterrupted.

 

7.3 To the extent permitted by law, the express warranties in this clause are in lieu of all other warranties, express, implied or statutory, regarding the Solutions, Support Services or Services and any materials developed during the performance of the Services, including any warranties of merchantability, fitness for a particular purpose, title and non-infringement of third party rights. The Customer acknowledges that is has relied on no warranties other than the express warranties provided in this clause.

 

8.0 CUSTOMER INDEMNITIES

8.1 Customer must at all times indemnify and hold harmless the Seller (Nis-Cy Factory Pty Ltd) and its officers, employees, associated entities and agents (“those indemnified”) from and against any loss (including reasonably incurred or suffered by any of those indemnified arising from any proceedings against those indemnified where such loss or liability was in respect of:

(a) the damage to real and/or tangible property and the death or bodily injury of any agent,

employee, customer or End User of the Customer or the Seller arising as a result of the

Customer’s performance under this Agreement, to the extent that such damage, death

or bodily injury is caused by the negligence or wilful misconduct of the Customer or

Customer’s employees, agents or End Users;

(b) all and any claims made by any third party or End User in connection with or arising out

of a failure of the Seller’s infrastructure or hosting services;

(c) the infringement by the Customer of the Intellectual Property Rights of any third party

resulting from the performance of its obligations under this Agreement or any Contract;

(d) any alleged or actual misrepresentation by the Customer of the functionality of the

Solutions;

(e) any use of the Solutions in a manner or for a purpose not reasonably contemplated or

not authorised by the Seller;

(f) any modification or alternation of the Solutions without prior written consent of the

Seller;

(g) any use of the Solutions not contemplated within the Proposal or other documentation

provided by the Seller.

 

 

9.0 LIMITATION OF LIABILITY

 

9.1 Exempt for claims of indemnification, breach of Intellectual Property Rights and claims for breach of confidentiality, the limit of the Seller’s liability (whether in contract, tort, negligence, strict liability, tort or by statute or otherwise) to the other or to any third party concerning performance or non-performance under this Agreement, shall not in the aggregate exceed the monetary amounts paid or due to the Seller under this Agreement.

 

9.2 In no event shall the Seller be liable for any consequential loss or damage, indirect loss or damage, exemplary damages, special and incidental damages including damages for lost data, lost profits, lost revenue or lost opportunity which may be suffered or incurred by a party of which may arise directly or indirectly in respect of goods (including the Solutions) or services (including the Support Services and Services) supplied pursuant to this Agreement or in respect of any failure on the part of a party to comply with its obligations under this Agreement.

 

 

  1. RISK

10.1 Risk and risk of damages and any loss of profits passes to the Customer on Go-Live and the Customer must insure the Services, Solutions, Website, Online Portal and content therein on or before the Go-Live date.

10.2 The Seller, Lifewealth & its associated entities take no responsibility for content or information provided by the Customer.  The Customer is required to confirm the accuracy and validity of any and all information, claims and representations on the website or portal.  The Customer is also liable for any loss or damages arising from false, misleading or illegal information or content.

10.3 The Customer is required to ensure that all information, contents, products and or services represented by the website and/or online portal are in accordance with all laws and regulations.

 

  1. ACCESS TO C-PANEL, DOMAIN & WEBSITE

11.1 The Customer shall ensure that the Seller has clear and free access to the nominated website domain, C-Panel or other site, and any and all necessary information at all times to enable them to undertake the works. The Seller shall not be liable for any loss or damage to the site unless due to the negligence of the Seller.

 

  1. ACCURACY OF CUSTOMER INFORMATION

12.1 The Seller shall be entitled to rely on the accuracy of any information provided by the Customer. The Customer acknowledges and agrees that in event any of this information provided by the Customer is inaccurate or misleading, the Seller accepts no responsibility for any loss, damages, or costs however resulting from the inaccurate or misleading information.

 

13 INTELLECTUAL PROPERTY

13.1 The Customer warrants that all designs, specifications or instructions given to the Seller will not cause the Seller to Infringe any patent, registered design or trademark in the execution of the Customer’s order and the Customer agrees to indemnify the Seller against any action taken by a third party against the Seller in respect of any such infringement.

13.2 The Customer agrees that the Seller may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings or Goods which the Seller has created for the Customer. The Customer further agrees for the Seller to include its name and website link to a Lifewealth or related company site on the footer of any website pages for up to up to 24 months

 

  1. DEFAULT AND CONSEQUENCES OF DEFAULT

14.1 Interest on overdue invoices or instalments 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.

14.2 If the Customer owes the Seller any money the Customer shall indemnify the Seller from and against all costs and disbursements incurred by the Seller in recovering the debt.

14.3 Without prejudice to any other remedies the Seller may have, if at any time the Customer is in breach of any obligation (including those relating to payment) under these terms and conditions the Seller may suspend or terminate the supply of Goods or Services (or Solutions) to the Customer.  The Seller will not be liable to the Customer for any loss or damage the Customer suffers because the Seller has exercised its rights under this clause. The Seller is further entitled to cease hosting services for the website, domain, and Solutions.  The Customer agrees to indemnify the Seller from and against all costs and disbursements incurred by the Seller in reinstating the website, domain or customer portal.

14.4 Without prejudice to the Seller’s other remedies at law the Seller shall be entitled to cancel all or any order of the Customer which remains unfulfilled and all amounts owing to the Seller shall, whether or not due for payment, become immediately payable if:

(a) any money payable to the Seller becomes overdue, or in the Seller’s opinion the Customer

will be unable to make a payment when it falls due;

(b) the Customer 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 Customer or any asset of the Customer.

 

  1. TERM & TERMINATION

15.1 This Agreement will remain in force until the earlier of:

(a) the date it is terminated in accordance with its terms by either party; or

(b) the end of that period of time specified in the Proposal.

15.2 Unless the Customer provides at least sixty (60) days written notice prior to the expiration of its term, this Agreement will automatically renew for a further term of 12 months.   The Customer agrees to pay annual maintenance fees that apply to each 12-month term.  Maintenance Fees are to be paid monthly and at rates in line with the Seller’s Proposal.

15.3 The Seller may cancel any contract to which these terms and conditions apply or cancel delivery of Goods (or Solutions) at any time before the Services or Solutions are delivered by giving written notice to the Customer and returning fair share of any deposits or monies for services not commenced. The Seller shall not be liable for any loss or damage whatsoever arising from such cancellation.

15.4 In the event that the Customer cancels delivery of Services or Solutions, the Customer shall be liable for any and all loss incurred (whether direct or indirect) by the Seller as a direct result of the cancellation (including but not limited to any loss of profits).

 

  1. GENERAL

16.1 The failure by the Seller to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect the Seller’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 effected, prejudiced or impaired.

16.2 These terms and conditions and any contract to which they apply shall be governed by the laws of the state of Victoria in which the Seller has its principal place of business, and are subject to the jurisdiction of the courts in that state.

16.3 Subject to clauses under this contract the Seller shall be under no liability whatsoever to the Customer for any indirect or consequential loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by the Seller of these terms and conditions (alternatively the Seller’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Goods).

16.4 The Customer shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Customer by the Seller nor to withhold payment of any invoice because part of that invoice is in dispute.

16.5 The Seller may licence or sub-contract all or any part of its rights and obligations without the Customer’s consent.

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

16.7 The Customer warrants that it has the power to enter into this agreement and has obtained all necessary authorisations to allow it to do so, it is not insolvent, and this agreement creates binding and valid legal obligations on it.