Redback Solutions is a website development and digital agency and agrees to provide the Servicesrequested by the Client on the terms and conditions set out below. Words in ITALICS are defined at clause 25 below.
1.1 The Client shall be deemed to have accepted these terms and conditions and the Proposal if the Client:
(a) selects the “I Agree” condition (or the like) on Redback Solutions’s website, or any other website the purpose of which is to make contracts, when completing the online Order and submits the online Order;
(b) executes the Proposal, physically or electronically, and returns the Proposal to Redback Solutions; and/or
(c) gives or continues to give Redback Solutions instructions in relation to the Services after receiving the Proposal.
1.2 Notwithstanding clause 1.1, Redback Solutions may insist on the Client accepting the Proposal and these terms and conditions in writing by signing the Acceptance or another form of written acceptance.
1.3 Redback Solutions will not commence the Services until the Client has accepted these terms and conditions in accordance with clause 1.1.
2.1 Redback Solutions shall provide the Services in accordance with the Agreement andthe Scope as agreed in the Proposal.
2.2 The Client and Redback Solutions agree that the items referred to as Exclusions in the Proposal, if any, are excluded from the Agreement.
2.3 Redback Solutions warrants that the Services will be provided with due care and skill, and in a timely manner and in accordance with any timeframes agreed by the parties.
2.4 Redback Solutions is entitled to pause the Services at any time for operational and management reasons by written notice to the Client.
3.1 Subject to clauses 1.3, Redback Solutions shall provide the Client with the Services for the Term commencing on the date the Agreement is accepted or otherwise agreed in writing between the parties.
3.2 Upon the Term expiring, the parties may agree to extend the Term by mutual agreement and on such terms agreed at that time.
4. Client’s Responsibilities & Acknowledgments
4.1 The Client must:
(a) establish and maintain clear channels of communication at all times with Redback Solutions;
(b) comply with Redback Solutions’s reasonable directions in a timely manner;
(c) provide Redback Solutions access to the Client’s website(s);
(d) notify Redback Solutions of any updates to the Client’s services, terms and conditions or any other material update that may impact Redback Solutions or the Services, including (without limitation) changes to any laws and regulations that affect the Client’s business; and
(e) promptly provide all information requested and reasonably required by Redback Solutions for the purpose of providing the Services including, without limitation:
i Google Analytics access;
ii Facebook access; and
iii Linkedin access.
4.2 The Client acknowledges and accepts that:
(a) the results of the Service may vary due to third party providers (such as Google and Facebook) changing its systems and algorithms which affect search rankings, advertising costs and other factors that may impact the Client;
(b) the ranking of a website on a particular search engine (such as Google) is determined by many factors outside the control of Redback Solutions;
(c) Redback Solutions does not guarantee or represent that the Services will result in the Client’s desired outcome;
(d) Any client case studies or results promoted by Redback Solutions are used for example purposes only and in no way imply that similar results will be achieved by the Client;
(e) Redback Solutions is not responsible for any independent changes made to the Client’s website(s)by the Client or other parties that detrimentally affect the ranking or results of the website(s) ;
(f) the Client will have a direct legal relationship with each third party service provider it engages, including those service providers engaged by Redback Solutions onbehalf of the Client as part of the Services, and the Client agrees to be bound by the terms and conditions of the third party;
(g) the Client is authorised to use any images or content provided to Redback Solutions by the Client;
(h) Redback Solutions is not responsible for any content published and/or distributed on behalf of the Client pursuant to the Services, in particular via the Client’s website or social media pages;
(i) the Client will indemnify Redback Solutions for any loss or damage incurred by Redback Solutions as a result of any authorised use of images or content on behalf of the Client pursuant to the Services. For the purposes of this clause, the Client will be deemed to have authorised content selected by Redback Solutions if they do not request removal of the content upon inspection); and
(j) Redback Solutions may provide incentives to third parties to introduce potential customers or clients to Redback Solutions or to direct Redback Solutions to potential customers or clients.
4.3 Redback Solutions shall not be responsible for any errors brought about by the Client’s failure to provide information or documentation or failure to provide material that is later found to be material to the Client’s requirements or any statutory return.
5. Fees & Invoices
5.1 The Client shall pay to Redback Solutions the Fees and other money that becomes payable under the Agreement (without any set off) in the manner and at the times stated in the Agreement and/or the Proposal.
5.2 Redback Solutions will issue an Invoice to the Client for any paid Services provided.
5.3 The Client must pay the Fees within 7 Business Days of the date an Invoice is sent to the Client, or such other period as specified in the Proposal.
5.4 Should the Client dispute any charge on an Invoice, the Client must notify Redback Solutions of the disputed item within 5 Business Days of the date of the Invoice. The Client must pay the amount of the Invoice not in dispute within the stated timeframe. Failure by the Client to notify Redback Solutions of a disputed Invoice within 5 Business Days shall be deemed acceptance by the Client of the entire Invoice.
5.5 Unless specified otherwise, the Services will be capped to such number of hours that is equivalent to the Fees as based on the Default Rate (for example, a Fixed Fee of $1,500 is equivalent to 10 hours of work). Where Redback Solutions has performed the value of the Fees from performance of an equivalent number of hours providing the Services, the Client agrees that any additional work will be outside of the Scope and subject to additional charge. Where the Client does not accept the additional charge upon being notified by Redback Solutions, then Redback Solutions may cease all Services immediately without any further liability to the Client.
5.6 Redback Solutions will provide an itemised account of fees and charges upon the Client’s written request.
5.7 If Redback Solutions engages a third party service provider in connection with the Services with the Client’s prior consent, the Client shall indemnity Redback Solutions against all fees and disbursements charged by that third party to Redback Solutions. The Client acknowledges that Redback Solutions may require that the Client enter into a service agreement with the third party directly.
5.8 Unless agreed otherwise, the Default Rate for the Services shall increase on each anniversary of 1 July by 5% or such other amount by written notice to the Client or at such other times by 30 days prior written notice to the Client. For the avoidance of doubt, any change to the Default Rate will impact the number of included hours of Services in accordance with the capped pricing model under clause 5.5.
5.9 The Client is not entitled to receive the benefit of any credits, discounts, subsidies, rebates, or refunds provided to Redback Solutions by Redback Solutions’s Third-Party Partners.
5.10 If the Fees are paid by direct debit the Client acknowledges that the respective third party direct debit party’s terms & conditions will apply and the Client agrees to be bound by the said terms & conditions and liable to pay the direct debit party’s fees.
5.11 The Client shall indemnify Redback Solutions for reasonable expenses incurred on behalf of the Client and costs borne in connection with the performing of the Services with the Client’s prior consent. The Client acknowledges that the Fees do not include expenses incurred on behalf of the Client, unless specified otherwise.
6. Variations & Custom Services
6.1 A Variation or Custom Services occurs if:
(a) the Agreement deems a Variation or Custom Services;
(b) the Client requests Redback Solutions to perform a Variation or Custom Services and subsequently Redback Solutions performs the Variation or Custom Services in accordance with the Client’s direction;
(c) the Client and Redback Solutions agree in writing to a Variation or Custom Services, including Agreement as to the price of the Variation or Custom Services; or
(d) Redback Solutions’s expenses or supplier costs increase.
6.2 Unless agreed otherwise between the parties, the price of a Variation or the Custom Services Fee is payable progressively as the Variation or Custom Services is performed and is due at the same time as the next Account after it is carried out.
6.3 If the Client has requested Redback Solutions to perform a Variation or Custom Services and Redback Solutions has provided the Client with a cost proposal in respect of the Variation or Custom Services, unless the cost proposal is rejected by the Client in writing within two (2) Business Days the amount of the cost proposal is deemed to be the price of the Variation or Custom Services for the purposes of clause 6.1(b).
6.4 If there is insufficient time to calculate the price of a Variation or Custom Services, or this Agreement deems a Variation or Custom Services, the price of the Variation will be charged to the Client based on the Default Rate.
6.5 There shall be a deemed Variation or Custom Services if:
(a) the requirements of any statutory or other Authority necessitate a change to the Services, such Variation being that work required to effect that change;
(b) additional work is required, or the work is required to be performed in a manner not anticipated; and/or
(c) after the Agreement is made a statutory or other Authority introduces or increases any tax, charge, levy or other regulation or any requirement that affects the Services that causes any increase in the costs of the Services.
6.6 Notwithstanding any other clause herein, Redback Solutions is under no obligation to carry out any deemed Variation, Variation or Custom Services requested by the Client.
7. Acknowledgement of Possible Delays
7.1 The Client acknowledges that completion of the Services may be suspended by Redback Solutions pursuant to clause 8 or delayed by any cause beyond the control of Redback Solutions including:
(a) a Variation or a request by the Client for a Variation;
(b) an act of God, fire, explosion, earthquake or civil commotion;
(c) an industrial dispute;
(d) anything done or not done by the Client;
(e) Redback Solutions’s period usual Christmas shutdown period, if any, in each year; and
(f) any materials required by Redback Solutions to perform the Services not being fully completed or made available to Redback Solutions.
7.2 Redback Solutions shall not be liable for the failure to perform the Services or the Agreement to the extent and for so long as its performance is prevented or delayed without substantial fault or negligence by Redback Solutions because of a circumstance referred to in clause 7.1.
7.3 Where the costs of the Services have increased due to any delay beyond the control of Redback Solutions, there shall be a deemed Variation and Redback Solutions shall be entitled to a reasonable increase in the Fees.
8.1 If the Client is in breach of the Agreement, Redback Solutions may suspend the carrying out of the Services and must promptly give to the Client written notice of the suspension and details of the breach.
8.2 Redback Solutions must recommence the providing the Services within a reasonable time after the Client remedies the breach and gives Redback Solutions written notice of that fact.
9. Dispute Resolution
9.1 The parties must attempt to resolve any dispute or claim arising out of or under the Agreement by negotiation in good faith before either party commences any litigation in relation to the dispute or claim. Accordingly, if a party considers that a dispute or claim has arisen under the Agreement they must give written notice to the other party adequately setting out and providing details of the dispute.
9.2 Redback Solutions and the Client must meet in person, by phone, via the internet, via video link or by any other means, within ten (10) Business Days of the giving of a notice pursuant to clause 9.1 to attempt to resolve the dispute or claim or to agree on methods of doing so. The parties must be represented at the meeting by a person with authority to agree to a resolution of the dispute.
9.3 If the dispute is resolved the parties must write down the resolution and sign it.
9.4 The parties agree that anything done or said in the negotiations cannot be revealed in any other proceedings.
9.5 Nothing in this clause prevents either party from commencing urgent injunctive or interlocutory proceedings in a competent Court or affects Redback Solutions’s right to take recovery action in relation to any overdue Account.
9.6 Despite the existence of a dispute, the parties must continue to perform their respective obligations under the Agreement.
10. Default, cancellation & Termination of Contract
10.1 Notwithstanding any other clause herein, Redback Solutions may cancel any agreement to which these terms and conditions apply at any time before the Services are commenced by giving written notice to the Client whereafter any deposit or other amount paid by the Client on account of the Services shall become immediately repayable to the Client. Redback Solutions shall not be liable for any consequential loss or damage in relation to any such cancellation.
10.2 Either partymay terminate this Agreement for convenienceat any time by giving the otherparty 30 days written notice.
10.3 Without limiting clause 10.4, a party may terminate the Agreement for cause in the following circumstances:
(a) the other party is in default of the Agreement;
(b) the non-defaulting party has served notice in writing on the party setting out details of the default and stating that the party will be entitled to terminate the Agreement unless the default is remedied within a specified time of not less than 14 days;
(c) the party fails to remedy the default within 14 days of receiving a notice under clause (b), or such longer period as may be specified in the notice; and
(d) the non-defaulting party serves written notice of termination whilst the default remains unsatisfied.
10.4 If the Client fails to pay any Fees in accordance with the Agreement within seven (7) days of the due date for payment:
(a) Redback Solutions may terminate the Agreement by notice in writing to the Client;
(b) the Client shall indemnity Redback Solutions from and against all costs and disbursements incurred or payable by Redback Solutions in connection with the recovery of monies owing by Redback Solutions (including, without limitation, legal fees on an indemnity basis, collection agency costs and bank dishonour fees); and
(c) Redback Solutions may cancel all or any part of the Services or Services in connection with any other contract or contracts made with the Client to which these terms and conditions apply whereafter all amounts payable by the Client to Redback Solutions shall become payable immediately.
10.5 If Redback Solutions terminates this Agreement for convenience under clause 10.2, Redback Solutions will refund to the Client any Fees paid by the Client on a pro rata basis.
10.6 If the Client terminates this Agreement for convenience under clause 10.2, the Client will remain liable to pay any Fees and other moneys it has incurred or agreed to pay Redback Solutions, including any disbursements paid on behalf of the Client.
10.7 Where the Client has engaged Redback Solutions for a Term of 12-months and purports to terminate for convenience after 6-months from commencement of the Term, the Client will not be entitled to any pro rata refund on the Fees for the remainder of the agreed Term.
10.8 The Client acknowledges that due to the nature of the internet, certain information posted about the Client during the course of providing the Services may continue to be available on the internet following termination of the Agreement.
11. Warranties & Representations
11.1 Except as expressly provided to the contrary in the Proposal, or elsewhere in these terms and conditions, all representations, warranties, guarantees and conditions in relation to the Services (whether implied or otherwise) are hereby excluded to the maximum extent permitted by law.
11.2 If the Client is aware (or should be aware) that the Services are for a particular purpose, the Client agrees to clearly specify that purpose in writing in the Proposal.
11.3 The Client warrants that it has made its own enquiries in relation to the suitability of the Services and has not relied on any representation made by Redback Solutions in relation to their suitability for any particular purpose.
11.4 Redback Solutions provides the Services without any warranty or guarantee of continuous or uninterrupted availability. If the Services are delayed or interrupted whatsoever, Redback Solutions’s only obligation will be to restore the Services as soon as reasonably possible.
11.5 Redback Solutions makes no warranty or guarantee in respect of the Services to the performance of any campaign or any Service provided by Redback Solutions.
11.6 Redback Solutions does not warrant, guarantee or endorse for any product or service advertised or offered by any third party in relation to the provision of the Services.
12. Third-Party Websites & Obligations
12.1 The Client authorises Redback Solutions to:
(a) post content on third party sites or applications, such as (but not limited to) Google , Facebook, Twitter, Linkedin, direct email campaigns, blogs or SMS message campaigns and other social media sites, in relation to providing the Services, and
(b) enter into, on behalf of the Client, relationships with third party sites.
12.2 The Client agrees to be bound by the terms and conditions of any third party site Redback Solutions enters into a relationship with in accordance with clause 12.1 above.
12.3 Any content Redback Solutions provides to or posts on any third party site or application will be subject to the relevant third party site’s terms and conditions and the Client authorises Redback Solutions to:
(a) publish on the Client’s website(s)content related to the provision of the Services, and
(b) monitor the internet for mentions of the Client.
12.4 The Client authorises Redback Solutions to do all things reasonably necessary to perform Redback Solutions’s obligations under this Agreement including, without limitation:
(a) submitting and managing the Marketing Content on or through third party sites,
(b) establishing or assuming control of relationships on the Client’s behalf with third party sites,
(c) registering the Client with third party sites,
(d) generating or storing passwords for third party sites, and
(e) using the functionality of third party sites on the Client’s behalf.
12.5 Unless otherwise directed in writing, Redback Solutions does not require the Client’s approval or consent before publishing any Marketing Content on third party sites on behalf of the Client.
12.6 If the Client provides Redback Solutions with any Access Credentials, Redback Solutions will not disclose the Access Credentials to any third party without taking reasonable steps to protect and maintain the Client’s confidentiality.
13.1 Redback Solutions will keep all Confidential Information in confidence on an ongoing basis in accordance with this Agreement.
13.2 The confidentiality obligations owed under this Agreement shall survive termination of the Agreement.
13.3 Redback Solutions may disclose Confidential Information to its personnel (including to third parties engaged by Redback Solutions in connection with the Services) if:
(a) The disclosure is required to enable Redback Solutions to perform its obligations or to exercise its rights under this Agreement; and
(b) Prior to disclosure, Redback Solutions informs the person of Redback Solutions’s obligations in relation to the Confidential Information under this Agreement.
13.4 Nothing in this Agreement shall prevent Redback Solutions from using the name of the Client in any list of clients used by Redback Solutions for its own promotional purposes in accordance with clause 17.5.
14. Compatibility, Integration & Updates
14.1 Redback Solutions will use its best endeavors to ensure the Services will be compatible with industry supported browser technology. Redback Solutions provides no guarantee that the Services will function on future browser versions.
14.2 Any integration of the Services with third party software or plugins or digital analytical tracking will only be provided for the current versions of the third party software or plugins. Redback Solutions provides no guarantee that the Services will function on future versions of third party software or plugins.
14.3 The Client authorises Redback Solutions to integrate analytical tracking codes on any website or online property belonging to the Client from third party sites including but not limited to Google, Facebook and LinkedIn.
14.4 Redback Solutions will use its best endeavors to ensure the Services will be compatible with industry supported content management systems. Redback Solutions provides no guarantee that the Services will function on future versions of content management systems.
14.5 If the Client requests Redback Solutions to perform works to address compatibility, integration or update issues as set out in this clause 13, the said work will constitute Custom Services and Redback Solutions’s Custom Services Fees will apply.
15. No Exclusivity
15.1 Unless otherwise agreed by Redback Solutions in writing, the Agreement is non-exclusive.
15.2 Redback Solutions shall not be limited in the services it may provide to any other client or potential client regardless of the business of the client or potential client or the area in which the client or potential client operates.
16. Limitation & Exclusion of Liability
16.1 Unless the Proposal specifies otherwise, Redback Solutions disclaims any assumption of responsibility for reliance on the Services or any document:
(a) by any party other than the Client, and
(b) for any purpose other than the purpose for which the document was prepared.
16.2 To the maximum extent permitted by the law, Redback Solutions excludes all liability for any:
(a) errors, mistakes or inaccuracies in information;
(b) personal injury or property damage as a result of access to or the use of the Services;
(c) unauthorised access to Redback Solutions’s servers or systems including Redback Solutions’s company information;
(d) interruption of transmission of the Services;
(e) computer or technical bugs, viruses, trojan programs or the like that may be transmitted through the provision of the Services by any third party;
(f) loss or damage, of any kind as a result of the posting of any information or emails sent in providing the Services;
(g) misleading or inaccurate statements contained in any website content or digital marketing including articles, blogs, emails and SMS messages;
(h) negligent act or omission on the part of Redback Solutions, any employee or contractor engaged by Redback Solutions;
(i) loss or damage incurred by the client in relation to the Marketing Content;
(j) provided that Redback Solutions has taken reasonable steps to protect and maintain confidentiality in all Access Credentials provided to it by the Client, any unauthorised sharing of Access Credentials; and
(k) subject to clause (j), unauthorised release or sharing of any content relating to the Services that may be disclosed or released by any third party engaged by Redback Solutions during the course of providing the Services.
16.3 To the maximum extent permitted by the law, Redback Solutions’s liability to the Client (and any party claiming through the Client against Redback Solutions) for any claim for loss or damage (including legal expenses), whether arising in contract, tort or otherwise, in connection with the Agreement shall be limited to the lesser of the costs of:
(a) supplying the Services again, or
(b) payment of the costs of having the Services supplied again.
16.4 Redback Solutions shall not be liable for any indirect, special or consequential loss or damage of any nature whatsoever resulting from or caused in any way by the carrying out of the Services, including without limitation, loss of profits, damage to reputation, loss of revenue or loss of staff.
16.5 For the purpose of this clause ‘consequential loss’ includes:
(a) loss or damage not arising naturally, or according to the usual course of things, from the relevant event giving rise to that loss or damage, whether or not that loss may reasonably have been or supposed to have been in the contemplation of the parties as at the date of Acceptance, as a probable result of the relevant event,
(b) indirect, economic, special or consequential loss, and
(c) loss in the nature of loss of profits, revenue, data, production, opportunity or use even if the relevant loss may reasonably have been or was supposed to have been in the contemplation of the parties as at the date of the Acceptance, as a probable result of the relevant event.
17. Intellectual Property
17.1 Where Redback Solutions has designed, drawn or developed unique and/or original works, designs or drawings, not specific to the Client’s business, in connection with the Services, copyright in such works, designs or drawings shall vest in Redback Solutions.
17.2 Where Redback Solutions has designed, drawn or developed unique and/or original works, designs or drawings, specific to the Client’s business, in connection with the Services, copyright in such works, designs or drawings shall vest in the Client, subject to the payment of the Fees.
17.3 The Client warrants that Redback Solutions is entitled to use all documents and drawings provided by the Client for the purposes of providing the Services and that such use will not infringe any third party’s intellectual property rights.
17.4 The Client shall indemnify Redback Solutions from and against all claims and all losses and damages incurred by Redback Solutions as a consequence of any claim against Redback Solutions for infringement of a third party’s intellectual property rights in connection with the provision of the Services in accordance with a document that is; supplied by, prepared under the instruction of, or prepared from sketches provided by, the Client.
17.5 The Client authorises Redback Solutions to use any documents, designs, drawings or goods that Redback Solutions has created for the Client including photographs thereof for the purposes of marketing Redback Solutions’s business or entry into any competition.
18.1 If the Client is purchasing advertising on behalf of another company or individual, the Client represents that it has the authority of the company or individual to act as its agent in all respects of this Agreement including, without limitation:
(a) the making of any elections or giving of consents, and
(b) that the company or individual has been made aware of the Agreement.
18.2 The Client and the company or individual shall be jointly and severally liable for the fulfillment of obligations under this Agreement, including all payment obligations.
19. Subcontracting & Assignment
19.1 Redback Solutions may subcontract the whole or any part of the Services but remains responsible for all of the Services.
19.2 The Client acknowledges that Redback Solutions may replace subcontractors as necessary to provide the Services.
19.3 Redback Solutions may assign the Agreement to another entity by written notice to the Client. In the event of the assignment the Client may, if it has reasonable grounds to believe that the assignee will not comply with the Agreement, within seven (7) days of receiving notice of the assignment terminate the Agreement by 30 days written notice to Redback Solutions whereafter the termination will be effective unless the assignment is withdrawn.
20. Modification of Terms and Conditions
20.1 Redback Solutions may vary or modify, any of the terms and conditions contained herein, at any time by providing the Client with 30 days written notice, and the Client will be required to accept the modified terms in order to continue using the Services.
20.2 Continued use of the Services following notice of any modification or variation of the terms and Conditions will constitute a binding Acceptance of the modifications.
20.3 If the Client does not accept the modified terms, it must notify Redback Solutions and terminate the Agreement.
21.2 Redback Solutions may collect personal information about the Client and its representatives and employees in the course of acting for the Client. This personal information will only be disclosed and used for the purposes of providing the Services, improving Redback Solutions’s services and obtaining feedback, or otherwise in accordance with the Client's instructions.
21.4 The Client consents to Redback Solutions using any personal information collected by Redback Solutions for the following purposes or as required by law:
(a) the performance of the Services,
(b) the marketing of the supply of Services by Redback Solutions,
(c) the analysing, verifying and checking of the Client’s credit and/or payment status in relation to the performance of the Services,
(d) the processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client, and
(e) enabling the daily operation of the Client’s account and/or the collection of amounts outstanding in the Client’s account in relation to the performance of the Services.
22.1 The Fees and all other monies payable by the Client pursuant to the Agreement are exclusive of GST.
22.2 If Redback Solutions incurs a liability to pay GST in connection with a supply to the Client pursuant to the Agreement, then the Client agrees that the consideration that the Client must pay to Redback Solutions for the supply is increased by an amount equal to the GST liability that Redback Solutions incurs in making the supply and the amount of the GST liability is payable at the same time and in the same manner as the consideration in respect of the supply is payable.
22.3 Redback Solutions shall provide the Client with a tax invoice for any GST included in any payment made pursuant to the Agreement.
23.1 The parties agree that email shall be the primary method of contact and communication in relation to any matters arising under the Agreement.
23.2 A notice is deemed to have been given or serviced if the notice is:
(a) delivered by hand to the other party;
(b) posted by ordinary prepaid mail to the other party’s address (including a Post Office Box) stated in the Proposal or Proposal on the second Business Day following the date of posting; or
(c) sent by facsimile transmission to the parties’ facsimile number stated in the Proposal or Proposal upon receiving confirmation of delivery of the transmission; or
(d) sent by email to the parties’ email address stated in the Proposal or Proposal upon receiving confirmation of delivery of the email without error.
24.1 Redback Solutions warrants that it is an independent service provider to the Client and that it is not an employee or partner of the Client in any way.
24.2 Payments may only be made by cash, bank cheque, electronic funds transfer, direct debit or credit card (unless Redback Solutions agrees otherwise in relation to a payment). The Client agrees to pay a surcharge respect any payment made via credit card equivalent to the applicable processing fees of Redback Solution's credit card payment provider.
24.3 The Client may not:
(a) set off against or deduct from any monies payable under the Agreement any sums owed or claimed to be owed by Redback Solutions to the Client; or
(b) withhold payment of any Account because the Account or part of it is in dispute.
24.4 The Agreement embodies the whole agreement between the parties relating to the subject matter of the Agreement and supersedes any and all oral and written negotiations and communications by or on behalf of any of the parties.
24.5 To the extent that the Proposal is inconsistent with these terms and conditions, the terms of the Proposal will prevail.
24.6 The terms in the Agreement may not be varied, waived, discharged or released, except with the prior written consent of the parties.
24.7 The parties acknowledge and agree that this Agreement is binding upon each party if executed digitally and conveyed by electronic communication.
24.8 No right under the Agreement is waived or deemed to have been waived in relation to any particular instance unless in writing and signed by the party waiving the right. A party does not waive its right under the Agreement by granting an extension of time or any other forbearance to another party.
24.9 The Agreement shall be governed by and constructed pursuant to the laws of the State of New South Wales, Australia. The parties irrevocably submit to the jurisdiction of the Courts of that State in connection with any dispute relating to the Agreement. The parties further agree that the Court of competent jurisdiction located closest to Redback Solutions’s principal place of business in the relevant State shall be the appropriate Court for the hearing of any claims in connection with this Agreement.
24.10 The parties agree that a construction of the Agreement that results in all provisions being enforceable is to be preferred to a construction that does not so result.
24.11 If, despite the application of clause 24.10, a provision of the Agreement is illegal or unenforceable:
(a) if the provision would not be illegal or unenforceable if a word or words were omitted, that word or those words are severed; and
(b) in any other case, the whole provision is severed;
(c) and the remainder of the Agreement continues in force.
25. Definitions & Interpretation
25.1 In these terms and conditions:
(a) “Acceptance” means the acceptance document signed or accepted by the Client in relation to the Proposal and these terms and conditions;
(b) “Access Credentials” means any passwords or logins for websites or social media accounts provided to Redback Solutions by the Client, which may be released to third parties;
(c) “Account” means both a statement of the Fees claimed to be due to Redback Solutions under the Agreement and a tax invoice as defined in the A New Tax System (Goods and Services Tax) Act 1999;
(d) “Agreement” means the agreement between the Client and Redback Solutions arising from the Client’s acceptance of Redback Solutions’s offer comprised by the Proposal;
(e) “Authority” means the Local Government, State or Federal Government, or any Government agency that has power to affect the Services;
(f) “Business Day” means any day other than Saturdays, Sundays or public holidays in Sydney, New South Wales, Australia;
(g) “Confidential Information” means any written or verbal information that:
i is connected with the Client and is obtained from the Client or one of the Client’s representatives;
ii the Client informs Redback Solutions that the Client considers it confidential and/or proprietary; or
iii is personal information within the meaning of the Privacy Act;
but does not include information that Redback Solutions can establish:
iv was in the public domain at the time it was given to Redback Solutions;
v became part of the public domain, without Redback Solutions’s involvement in any way, after being given to Redback Solutions;
vi was in Redback Solutions’s possession when it was given to the Redback Solutions, without having been acquired (directly or indirectly) from the Client; or
vii was received from another person who had the unrestricted legal right to disclose that information free from any confidentiality obligation.
(h) “Client” means the party named as the Client or customer in the Proposal;
(i) “Custom Services” means any additional services that are requested outside the Scope or where no other price has been agreed between the parties for the Services;
(j) “Custom Services Fees” means the fees for Custom Services that will be charged at Redback Solutions’s prevailing hourly rates as varied from time to time or as otherwise agreed between the parties, which in default shall be the Default Rate;
(k) “Default Rate” means $150 exclusive of GST, unless agreed otherwise in the Proposal;
(l) “Exclusions” means the exclusions described in the Proposal;
(m) “Fees” means the fees payable by the Client to the Redback Solutions for the Services as agreed in the Proposal or otherwise between the parties from time-to-time, and may include (without limitation):
i Fixed Fee;
ii Monthly Retainer; and
iii Custom Services Fees;
(n) “Fixed Fee” means the once-off fee payable by the Client and, where applicable, charged in advance;
(o) “GST” has the same meaning as given to it in the A New Tax System (Goods and Services Tax) Act 1999;
(p) “Marketing Content” means marketing and promotional content which Redback Solutions may create, publish and distribute for the Client;
(q) “Monthly Retainer” means the ongoing monthly retainer payable by the Client and, where applicable, will be:
i charged in advance, and
ii calculated on a pro rata basis for any part of the Term commenced before the first day of the calendar month.
(r) “Privacy Act” means the Privacy Act 1988 (Cth).
(t) “Proposal” means the proposal, if any, provided by Redback Solutions to the Client in respect of the Services;
(u) “Redback Solutions” means RB Solutions (Newcastle) Pty Ltd ABN 83 626 468 362 trading as Redback Solutions;
(v) “Scope” meansthe scope of Services as described in the Proposal.
(w) “Services” means the services to be provided to the Client and includes Variations but excludes the Exclusions.
(x) “Term” means the term specified in the Proposal;
(y) “Third Party Partners” means any party that Redback Solutions has a relationship with or commercial agreement within the industry that the Services relate;
(z) “Variation” means to vary the Services by; carrying out additional work, omitting any part of the Services or changing the Scope and includes Custom Services Fees.
25.2 In the Agreement, unless otherwise indicated by the context:
(a) the singular includes the plural and vice versa;
(b) a reference to one gender includes a reference to all other genders;
(c) headings to clauses are included for the sake of convenience only and will not affect the interpretation of the clauses to which they relate;
(d) references to any statute or statutory provision include that statute or statutory provision as amended, extended, consolidated or replaced by subsequent legislation and any Proposals, regulations, instruments or other subordinate legislation made under the relevant statute;
(e) the word person means and includes a natural person, a company, a firm or any other legal entity whether acting as a trustee or not;
(f) the Agreement will bind each party’s legal personal representatives, successors and assigns; and
(g) where a party comprises two (2) or more persons the rights and obligations of such persons pursuant to the Agreement will ensue for the benefit of and bind each of them jointly and severally.