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1   CONTRACT FORMATION

1.1  MOQdigital’s proposal is an offer to Client to provide the Virtual DBA Services described in the proposal on these terms and conditions.

1.2  Client accepts the offer by both signing the unamended proposal and returning it to MOQdigital or by asking MOQdigital to commence the Virtual DBA Services.

1.3  If the parties agree to any amendment to a proposal, each amendment must be initialled by an authorized representative of MOQdigital and the amended proposal must be signed by an authorised representative of MOQdigital before MOQdigital is bound by the amendment.

1.4  Once a proposal is accepted by Client it may not be cancelled or terminated by Client other than as set out in these terms and conditions.

1.5  If Client accepts subsequent proposals from MOQdigital for new or additional Virtual DBA Services without terms and conditions attached, Client agrees that these terms and conditions apply to those proposals.

2   SUPPLY OF VIRTUAL DBA SERVICES

2.1  Subject to receipt of any payment or deposit that is stated in the proposal as being payable prior to performance or delivery of any services, MOQdigital will use all reasonable efforts to provide the Virtual DBA Services in accordance with the proposal and for the duration specified in the proposal. If no duration is specified the Virtual DBA Services are provided on a month to month basis.

2.2  If a proposal is based on erroneous assumptions or information provided by Client, Client acknowledges that the fees may be subject to variation.

2.3 Client must notify MOQdigital if at any time Client wishes to increase the service level specified in the proposal (e.g. Bronze, Silver or Gold). Client acknowledges that additional fees will apply from the month following the notice at the then current rate charged by MOQdigital for the applicable service level. Service levels cannot be decreased.

2.4 Any response times or other timeframes referred to in a proposal are estimates only and not guaranteed times for performance.

2.5 If Client requires any consulting services (other than the Virtual DBA Services) from MOQdigital, unless otherwise agreed, such services will be provided within a reasonable time, at MOQdigital’s then current time and materials rates and subject to MOQdigital’s terms and conditions for such services.

2.6  To enable the performance of the Virtual DBA Services, Client must, at its own expense:

    • provide access to MOQdigital and its contractors to Client’s site at all reasonable times required by MOQdigital;
    • procure that Client’s personnel and third party service providers co—operate with MOQdigital;
    • provide MOQdigital with the necessary facilities, equipment and resources remote access to Client’s systems on a 24/7 basis;
    • hold current licences to any software programs required and such licences must permit MOQdigital to access and use those programs;
    • provide MOQdigital with complete and accurate information requested by MOQdigital in a timely manner;
    • promptly make any decisions needed by MOQdigital;
    • maintain an adequate data recovery system;
    • take effective back-ups of data; and
    • install and operate reputable and industry standard anti-virus software.

2.7  Client acknowledges that a failure to meet the obligations in clause 2.6 may result in delays in the provision in the provision, or non-performance, of the Virtual DBA Services and additional costs. MOQdigital will not be responsible for any such delays or non-performance. MOQdigital is entitled to charge Client for any time or expense incurred as result of the failure of Client to comply with its obligations.

2.8 Client acknowledges that MOQdigital may install a monitoring tool or other devices (“tools”) on Client’s IT systems to aid MOQdigital in the performance of the Virtual DBA Services. Any tools are not to be accessed or used by Client or any third party without the prior written consent of MOQdigital.

2.9 Client warrants that it has the authority to allow:

  • MOQdigital and its contractors to use any facilities, equipment, resources and/or intellectual property rights that Client provides to MOQdigital or its contractors: and
  • MOQdigital to install the tools, for use in connection with performing the Virtual DBA Services.

2.10 If MOQdigital provides Client with a procedures manual or other documentation about the Virtual DBA Services, such documents are the confidential information and intellectual property of MOQdigital, are only to be used for Client’s internal business purposes and must not be disclosed to any third party.

2.11 Client must provide a safe environment for any of MOQdigital’s personnel that are visiting or working at Client’s site.

3   FEES

3.1  Unless otherwise specifically stated in a proposal in a proposal, the fees payable for the Virtual DBA Services are payable monthly in advance from the 1st of the month after the proposal is accepted.

3.2 Client must pay MOQdigital’s reasonable out of pocket expenses incurred in providing the Virtual DBA Services.

4   PAYMENT AND TAXES

4.1  Unless otherwise expressly stated in the proposal, the fees for the services (or any expense or charge) do not include any goods and services tax (GST). Client must pay MOQdigital the ex-GST amount for the services, plus any GST.

4.2  MOQdigital may issue a tax invoice for any amount due in accordance with the proposal. An invoice must be paid within 30 days of the date of invoice.

4.3  Time is of the essence for Client’s payment obligations. If the Client fails to make any payment when due, then without any liability to Client and in addition to any other of MOQdigital’s remedies or rights:

(a)   MOQdigital may suspend the Virtual DBA Services (and any other services) until Client pays the outstanding amounts; and

(b)   MOQdigital may charge Client a late charge for any failure to make any payment by the due date calculated daily using a rate that is 4% over the Reserve Bank of Australia’s Cash Rate, from the date that the payment first becomes overdue, to the date that the payment is received by MOQdigital, both dates inclusive.

4.4  Client must pay MOQdigital all amounts due in connection with a proposal without set off or deduction for any reason.

4.5  MOQdigital may increase its fees annually or as otherwise specified in the proposal by giving Client notice of such fee increase.

5   STATUTORY GUARANTEES

5.1  If Client is entitled to a statutory guarantee under sections 54 to 59 of the Australian Consumer Law as set out in Schedule 2 to the Competition and Consumer Act 2010 (Cth) (or equivalent legislation in a State or Territory) then to the extent that MOQdigital fails to comply with the statutory guarantee, MOQdigital’s liability is limited to one or more of the following, at MOQdigital’s option:

    • the replacement of the goods or the supply of equivalent goods;
    • the repair of the goods;
    • the payment of the cost of replacing the goods or of acquiring equivalent goods;
    • the payment of the cost of having the goods repaired.

5.2  Where Client is entitled to a statutory guarantee under sections 60 to 62 of the Australian Consumer Law (or equivalent legislation in a State or Territory) then to the extent that MOQdigital fails to comply with such statutory guarantee, MOQdigital’s liability is limited to, at MOQdigital’s option:

    • supplying the services again; or
    • payment of the cost of having the services supplied again.

5.3  Client acknowledges that having regard to the commercial terms including the price of the Virtual DBA Services (or other services), it is fair and reasonable for MOQdigital to rely on the limitations in clauses 5.1 and 5.2.

5.4  The Client acknowledges and agrees that:

          (a) the Virtual DBA Services may not be uninterrupted or error free or completely secure;

(b)   MOQdigital is not responsible for any defects in deliverables caused by Client or any person acting on behalf of Client, or by any breach of these terms and conditions;

(c)   it has not relied on any oral representation that is not reduced to writing and included in the proposal or these terms and conditions, or any written representation (including any representation on a website or in a brochure) that is not stated in the proposal or these terms and conditions;

(d)   it is not reasonable for Client to rely on MOQdigital’s skill and judgment to guarantee that any services are fit for a particular purpose or that any particular outcome will be achieved as a result of any services, or any product that results from any services unless that particular purpose or outcome has been stated in the proposal;

(e)   it has used its own skill and judgment and relied on its own expertise in making the final selection and purchase of the Virtual DBA Services, and has not made any particular use, requirement or outcome known to MOQdigital other than as stated in the proposal.

6   LIMITATION OF LIABILITY AND INDEMNITY

6.1  Where clauses 5.1 and 5.2 do not apply:

(a)   to the extent permitted by law and subject to paragraph (b), MOQdigital’s liability to Client in contract, tort (including negligence), breach of statutory duty or otherwise, under a proposal is limited to direct losses that do not exceed an amount equal to the fees paid by Client for the Virtual DBA Services in the month immediately preceding the event giving rise to liability.

(b)   MOQdigital is not liable for:

    • any indirect or consequential loss or damage;
    • Loss of profits or revenue, pure economic loss, loss of goodwill or loss of data;
    • any loss or damage arising from third party software, hardware, technology or services; or
    • any loss, damage or expense that would not be suffered by any other person acquiring the services.

6.2  Client must at all times indemnify and hold harmless MOQdigital, its officers, employees and agents (those indemnified) from and against any loss, damage, expense (including legal expenses on a full indemnity basis expenses) or liability incurred or suffered by any of those indemnified and all actions, proceedings, claims or demands made against those indemnified to the extent that they were caused directly or indirectly by:

    • a breach by the Client, its agents or contractors of the Client’s obligations;
    • any third party claim arising out of or in connection with the Virtual DBA Services, except for a claim under the Australian Consumer Law (or equivalent legislation in a State or Territory) that cannot be excluded by contract;
    • any wilful, unlawful or negligent act or omission of the Client, its agents or contractors.

6.3 MOQdigital is not liable for any failure to fulfil an obligation if it is unable to do so for any reason outside its control including without limitation because of a virus or other malicious act or code, internet disturbance or failure of telecommunications or power supply, acts of Gods, terrorism, trade disputes, or any act or omission of a Government agency or Client, the operation of Client’s environment.

7   INTELLECTUAL PROPERTY RIGHTS

7.1  All intellectual property rights arising from the Virtual DBA Services are the sole and absolute property of MOQdigital.

7.2  Client must not do anything that would be an infringement of MOQdigital’s intellectual property rights without MOQdigital’s written consent other than as permitted by law.

7.3 Without limiting clause 7.2, except to the extent permitted by law, Client must not reverse engineer, decompile, disassemble, translate, copy, alter, merge, modify or reproduce any intellectual property of or provided by MOQdigital (including any tools, software code or documentation).

8   PRIVACY

8.1  Client warrants that it has obtained the informed consent from each person about whom MOQdigital obtains personal information in connection with the Virtual DBA Services so that MOQdigital, its related bodies corporate, and their respective employees and contractors are able to use, store, manipulate or otherwise deal with that information as required in order for MOQdigital to provide, or for any purpose connected with, the Virtual DBA Services..

9    RESTRAINT

9.1  When the Virtual DBA Services are being provided or for 12 months after termination, Client must not, without the consent of MOQdigital, solicit or engage the services of any person who has provided the Virtual DBA Services (or other services) to Client on behalf of MOQdigital whether or not that person is still employed or engaged by MOQdigital.

10   TERMINATION

10.1   Month to month Virtual DBA Services may be terminated on 30 days prior written notice by either party.

10.2   Without limiting MOQdigital’s other rights and remedies, MOQdigital may, by written notice, immediately terminate or suspend performing its obligations if:

    • Client has not paid any amount due by the due date;
    • Client commits any breach of these terms and conditions and has failed to remedy such breach within 7 days of receipt of written notice requiring it to do so.

11   GENERAL

11.1 Client may not assign, transfer or novate any proposal in whole or in part without first obtaining MOQdigital’s written consent; except as specified in item 12 of the order form

11.2 To the extent permitted by law:

    • the proposal and these terms and conditions:
    • record the entire agreement between the parties in relation to its subject matter;
    • supersede all previous negotiations, understandings or agreements in relation to the subject matter; and
    • expressly exclude the pre-printed terms and conditions of any Client purchase order;
    • all conditions, warranties, guarantees or rights, including any implied by law, custom or other circumstance, that are not expressly specified in the order form, proposal or these terms and conditions are excluded;
    • notwithstanding the foregoing and without limiting clause 11.5, nothing in the proposal or these terms and conditions is intended to exclude, restrict or modify the application of any provision of (including any legal rights under) any statute (including the Competition and Consumer Act 2010 (Cth)) where to do so would contravene that statute or cause any part of a proposal or these terms and conditions to be void.

11.4 Any waiver must be in writing and signed by the party exercising the waiver.

11.5 If any term or condition offends any law applicable to it and as a consequence is illegal, invalid or unenforceable then:

    • where the offending provision can be read down so as to give it a valid and enforceable operation of a partial nature it must be read down to the extent necessary to achieve that result;
    • in any other case, the offending provision must be severed and the remaining terms and conditions operate as if the severed provision had not been included.

11.6 Any notice that is to be given in connection with the proposal must be in writing and signed by the person giving the notice. Any notice must be hand delivered to the address, sent by prepaid post to the address or sent to the facsimile number of the recipient as set out in the proposal or otherwise notified. Any such notice is deemed to have been received:

    • if hand delivered; on the date of delivery;
    • if posted; 3 business days after the date of posting;
    • if sent by facsimile; at the time set out on a transmission report from the machine from which the facsimile was sent which states that the facsimile was sent in its entirety to the facsimile number of the recipient, provided that that time is before 4.00 pm on a business day in the place of receipt, if the time is later than that the facsimile will be deemed received on the next business day in the place of receipt.

11.7 If any dispute arises under a proposal or these terms and conditions:

    • the party raising the dispute must provide the other written notice of the nature of the dispute (Dispute Notice), the issues involved and the remedy sought. The other party must provide a written response to the Dispute Notice addressing the issues in the Dispute Notice and providing details of its own position within 10 days of receipt of the Dispute Notice;
    • persons with authority to resolve the dispute from each party must meet and attempt to resolve the dispute through good faith negotiations within 25 days of the issue of the Dispute Notice;
    • if, for any reason, the parties have not resolved the dispute within 25 days of the issue of the Dispute Notice (or such longer period as is agreed by the parties) then unless the parties agree otherwise in writing, the dispute must be referred to LEADR for mediation by a person who is independent of the parties and who is appointed by agreement by the parties, or in absence of agreement within 7 days of the referral to Resolution Institute, a person who is appointed by the Chair of Resolution Institute or his/her representative. Any mediation will be conducted in accordance with the Resolution Institute Mediation Rules;

(d) if, for any reason, the parties have not resolved the dispute within 60 days of the issue of the Dispute Notice (or such longer period as is agreed by the parties) then, either party may commence legal proceedings. A party may also commence legal proceedings without following the process under paragraphs (a) to (c) if they are seeking urgent equitable relief.

11.8 The proposal and these terms and conditions are governed by the laws of New South Wales, Australia. The parties submit to the exclusive jurisdiction of the courts of Queensland, Australia and any courts competent to hear appeals from those courts.

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