DEFINITIONS
In these Terms and Conditions, unless the context or subject matter otherwise require:
Claim means, in relation to a person, a claim, demand, remedy, suit, injury, damage, loss, cost, liability, action, proceeding, right of action, claim for compensation or reimbursement or liability incurred by or to be made or recovered by or against the person, however arising and whether ascertained or unascertained, or immediate, future or contingent;
Contract Services means any Services requested by you from myera at any time;
Debt means any and all moneys owing to myera from you at any time whether in relation to one or more transactions, including without limitation any Overdue Amounts;
Delivery means the date of completion of the Contract Services;
Descriptive Matter means all project timelines, projections, predictions, mock-ups, proposals, statistics or any other data or information provided by myera in connection with a Quotation or the Contract Services;
Expenses means all of myera’s disbursements or third party costs related to the provision of the Contract Services including without limitation all travel and accommodation costs;
Intellectual Property means and includes all copyright and related Rights, all Rights in relation to inventions (including patents and patent Rights), all registered and unregistered trade marks Rights, all Rights relating to registered designs, all code and software or web programming, and all other Rights resulting from intellectual activity in the artistic, literary or scientific fields excluding any moral attribution Rights;
myera means Altimatum Pty Ltd ACN 605 344 910 as trustee for the Monkey Trust or its servants, contractors, employees or agents as the case may be;
Obligation means any express or implied legal, equitable, contractual, statutory or other obligation, agreement, covenant, commitment, duty, undertaking or liability;
Overdue Amount means any amount of money that remains unpaid thirty days after the date of the invoice for that amount or for a sum including that amount; Parties means you and myera;
Personal Information has the definition attributed to it under the Privacy Act 1988 (Cth); Price means the price for the Contract Services as set out in the Quotation;
Quotation means a verbal or written offer from myera to you for the supply of Contract Services to you;
Reviewed Price means the new price for the Contract Services, which is calculated by myera on a monthly basis:
Right means any legal, equitable, contractual, statutory or other right, power, authority, benefit, privilege, remedy, discretion or cause of action;
Services means any online presence creation, marketing, web development, online media management, business development or related consulting work or any other work or service myera may choose to provide from time to time;
Terms and Conditions means the terms and conditions set out in this document;
Website means the domain name https://myera.com.au/ and any sub-domains; and
You/your means the person or entity who has requested the Contract Services and/or the person or entity on behalf of whom the request for Contract Services is made.
GENERAL
When you enter into a contract, agreement or transaction with myera, whether conditional or unconditional, you acknowledge and accept that: you have read and understood these Terms and Conditions and you agree to be bound by them; these Terms and Conditions apply to every transaction for the supply of Contract Services from myera and myera is expressly relying on your acknowledgment that these Terms and Conditions will apply in full to the transaction in agreeing to enter into a Contract with you; any variation to these Terms and Conditions must be made with the consent of both Parties and must be in writing and signed by both Parties; and these Terms and Conditions or any Contract arising from them will not be interpreted, construed or applied adversely to myera by reason of their having been drafted by or on behalf of myera.
ENTIRE AGREEMENT
These Terms and Conditions and the details contained in a Quotation are the only terms that apply to the Contract. No other terms or conditions apply to a transaction or agreement between the Parties. You fully indemnify and hold myera harmless from any Claim based on terms and conditions outside of these Terms and Conditions.
ORDERING SERVICES
Upon your requesting Contract Services, myera will communicate a response to you in accordance with your request and this Quotation will constitute an offer from myera to you. myera’s Quotation may be provided to you in any form including, without limitation, ordinary post, facsimile, email, verbally or by hand delivery. A Quotation will lapse if thirty days after the Quotation has been delivered to you, the Quotation has not been accepted by you; You may accept a Quotation from myera by any of the following: written acceptance; verbal acceptance; part or full payment; or continuing to communicate with myera after the Quotation has been provided, in a manner that would reasonably imply acceptance of the offer. Once you perform an act of acceptance under clause 4(d) of these Terms and Conditions, myera is entitled to: rely on this acceptance as forming a contract to provide Contract Services on the basis set out in these Terms and Conditions; and receive from you full payment for the Contract Services regardless of whether or not you wish to complete the transaction at a later time. Once you perform an act of acceptance under clause 4(d) of these Terms and Conditions, you must: act reasonably and take reasonable care to protect your own interests with respect to the matters that are the subject of the Contract Services; and satisfy yourself as to the commercial viability of transactions (if any).All Descriptive Matter is intended merely to present a general idea of Services described within the Descriptive Matter. You acknowledge that: Descriptive Matter does not form part of the contract; you have not relied upon any representation contained within any Descriptive Matter; and you have not relied upon any inducement, representation or statement made by myera or its agents, employees or any other entity purporting to be acting on behalf of myera, outside of these Terms and Conditions, in entering into the Contract.
PAYMENT/NON-PAYMENT
Payment for the Contract Services must be made as follows: upon acceptance of a Quotation in accordance with clause 4(d), payment of 50% of the monthly Price stated in the Quotation; and on the monthly anniversary of the day that you accepted the Quotation in accordance with 4(d) (the EOM), payment of the remaining 50% of the monthly Price stated in the Quotation (and any further amounts owing for Contract Services that myera has provided which are outside the scope of the Quotation).If myera fails to provide the Contract Services in a reasonable manner consistent with industry standards within 30 days of payment in accordance with clause 5(a), myera will refund the full amount paid in accordance with clause 5(a) upon request by you and the order for the Contract Services will be cancelled. A failure by you to make payment in accordance with clause 5(a) does not: prevent you from accepting the offer in any manner provided for in clause 4(d); or limit or derogate from any of your Obligations under these Terms and Conditions. In addition to payment of the price stated in the Quotation, you also agree to reimburse myera for any Expenses that have been approved by you; Tax invoices detailing professional fees and expenses, any other charges and applicable taxes will usually be sent to you after acceptance is communicated in accordance with clause 4(d), and again upon Delivery of the Services; Payment of an invoice issued by myera must be made within seven days of the date of that invoice and only by the methods stipulated on the invoice. You will be deemed to have received an invoice from myera if it is: given to you or to your agent personally – on the day it is given to you; sent to you by post, or facsimile at the last address or number provided by you, or to your agent – within two days of the date of posting; or sent by email to an email address provided by you – the day after the date of the email transmission. If payment in full is not received within seven days of the invoice, this constitutes an event of default and the invoiced amount or any unpaid portion of it becomes an Overdue Amount. Upon an event of default under clause 5(j), myera may: suspend the delivery of any Contract Services; charge interest at the rate of 2% per month on any Overdue Amount from the date upon which it became due until the date of its eventual payment; and/or institute legal proceedings to recover the Overdue Amount and all legal costs (on a solicitor and own client basis) incurred by myera in connection with those proceedings; retain all documents, passwords, access codes, account details or anything else required by you to enjoy the benefit of the Contract Services until the tax invoice is paid; and/or seek indemnity for: any and all costs incurred by myera in taking any action under this clause; and any Claims against myera arising out of myera taking any action under this clause. You acknowledge that in addition to any price agreed in exchange for the Contract Services you are also liable to pay myera the following costs (which you consent to myera incurring on your behalf as myera considers necessary and which will form part of the Debt immediately upon being incurred by myera): all taxes, duties and charges whatsoever imposed by any government or other government-related authority and payable in respect or by reason of the sale or Delivery of the Contract Services whether or not the same were payable at the date of the order or offer; the amount of any increase in the costs of myera delivering the Contract Services or any part thereof occurring after the date a Quotation is provided for any reason; any excess incurred over the amount estimated by myera to be incurred for supplying or delivering the Contract Services, except where such excess results from an error or omission on the part of myera, its servants, agents or employees.
DELIVERY
myera will make all reasonable efforts to deliver the Contract Services within a reasonable period of time, however, time will not be of the essence of the contract and no penalty or damages will be incurred or caused by myera for: late Delivery of the Contract Services; failure to deliver or provide the Contract Services; or any actions or Obligations conducted or incurred by you in reliance on any expected Delivery date.
SUB-CONTRACTORS
To carry out your instructions myera may need to engage sub-contractors such as web developers or consultants. You authorise myera as your agent to engage such persons.
LIMITATION OF LIABILITY
If you have a genuine grievance with any Services provided by myera you should notify myera in writing within three days after Delivery of the Contract Services. myera will then consider the merits of your claim and at its sole discretion either: re-supply the Services; provide a partial refund, being 50% of the cost of the Contract Services; or decline to provide any remedy contained in this clause. myera expressly disclaims, to the fullest extent permitted by law, all express, implied and statutory warranties. Where any statutory terms may not be excluded, liability in respect of them is limited to no greater than the cost of re-supply of the Contract Services subject to the statutory warranty. myera will not be liable for any damage, loss, expense, charge or cost incurred by you as a consequence of: failure by you to provide myera with financial or personal information as provided for in clause 12; any delay by myera to supply the Contract Services to you; actions take in reliance on myera’s provision of the Contract Services; any Claim of consequential loss or special or exemplary damages; termination of a Contract by you or myera; cancellation of Delivery by you or myera; and any injury or death to you or any other person; and/or any damage to property.
TERMINATION
Termination by myera:
myera may terminate any contract arising out of the provision of its Services to you immediately upon notice to you in any form at any time. myera’s only liability to you upon termination by myera is limited to a refund of the amount of payments made in advance of Delivery of the Contract Services which myera has yet to deliver, after deduction of any Debt owing to myera. Termination by you: You may terminate any agreement arising out of the provision of the Contract Services to you upon 14 days’ written notice to myera sent by email to privacy@myera.com.au or to any other address that myera may nominate in writing for that purpose. Even if you terminate a transaction with myera in accordance with clause 9(c), you are still liable to pay the full amount that would have been payable upon completion of the transaction provided that myera has commenced any part of the process involved in completing the transaction agreed, including, without limitation, any administrative function. However this clause does not apply to the extent that you are entitled to a refund in accordance with clause 5(b).Upon receipt of your written termination, myera will issue an invoice for any amounts payable upon completion of the transaction that have not yet been paid. The amount of this invoice will become an Overdue Amount if not paid within seven days after the date of the invoice.
INTELLECTUAL PROPERTY/CONFIDENTIAL INFORMATION
If you provide myera with data, specifications, designs, plans, descriptions, prototypes, samples, tooling, Descriptive Matter or components for or in relation to Contract Services, you agree to indemnify myera against any Claims, actions, demands, costs, damages, or expenses arising from or incurred by reason of any infringement of any Intellectual Property or confidential information arising from the supply or use of such specifications, designs, plans, descriptions, prototypes, samples, tooling, Descriptive Matter or components. myera is not required to defend any action, Claim, or demand or to contest any costs or expenses covered by this indemnity before it is entitled to invoke this indemnity. Any Intellectual Property vested in the Contract Services remains the property of myera and only a limited licence to use the Intellectual Property in the most limited extent necessary to enjoy the benefit from the Contract Services for which they are designed is included in provision of the Contract Services irrespective of whether payment for any Services includes an amount for design or production. All documents, information systems and know how provided to or disclosed to you by myera must be treated as confidential by you and you warrant not to lend, copy, use, dispose of or sell such documents, information systems or know-how without the prior written consent of myera. Copyright subsists in advice and other documents prepared by myera and will remain myera’s property, subject, of course, to your right to use that advice and those documents in relation to the matter or transaction for which they were provided. The advice and documents must not, without prior written consent, be: reproduced or used by you in relation to any other transaction or matter; or provided to any other person or entity. If myera provide a document to you or to another party and changes are made to that document by someone other than myera, myera are not responsible for any loss caused by the changes unless myera has specifically approved them.
EMAIL COMMUNICATION
During the course of the Contract Services, myera will communicate with you and third parties by email unless otherwise agreed. This communication may consist of information, advice, opinions and copies of documents. myera cannot guarantee the security of any emails sent or received using the internet and will not be liable for any copying, recording, reading or interference by others during, or after, a transmission, for any delay or non-delivery, or for any damage caused in connection with the transmission. If you would prefer not to communicate by email, or there is particular material that you do not wish to be sent using the internet, you must notify myera so that the Parties can discuss an alternative method of communication.
PRIVACY
During the course of the Contract Services you agree to provide myera with the right to access your financial information, including but not limited to assets, liabilities, income and expenditure, account details, books of account, profit and loss statements, financial intelligence, sales records, budgets, targets, performance measures and other data for the purpose of allowing myera to provide the Contract Services with a view to increasing your sales. You acknowledge that your failure to provide full disclosure of this information may interfere with myera’s ability to provide the Contract Services to the expected standard. Without limiting any other clause in these Terms and Conditions, myera will not, without your consent, use your Personal Information in a way that breaches the Australian Privacy Principles set out in the Privacy Act 1988 (Cth).You agree that myera may collect Personal Information through your instructions and while acting for you. This includes Personal Information about individuals who are employees, directors or principals of corporate clients. You agree to ensure that these individuals are aware and agree that myera’s acting for you may involve collection of Personal Information about them. myera will use such Personal Information in the course of acting for you and may disclose Personal Information to myera’s service entities or agents and to other organisations including other parties in the matter and government agencies responsible for processing transactions, but only to the extent necessary to give effect to your instructions and in accordance with myera’s Obligations under this Agreement, or as required by law. If myera do not collect such Personal Information myera may not be able to carry out your instructions. In most cases, individuals whose Personal Information myera holds are able to gain access to that information upon request. Contact details and other information (such as information about areas of interest) myera holds about individuals may also be used by myera (and disclosed to myera’s service entities) to keep those individuals informed about services or seminars myera may offer (including by email and other electronic communications). However, if at any time an individual tells myera that they do not wish their Personal Information to be used for this purpose, myera will act in accordance with their request to the extent that they are able.
DISPUTE RESOLUTION
If you consider there is a legitimate dispute between myera and you (the Parties) as to any part of a transaction governed by these Terms and Conditions, you must first go through the following dispute resolution process before the commencement of any arbitration or other legal proceedings. You must give myera notice in writing setting out full details of the dispute (Dispute Notice).To resolve the dispute: for a period of 14 days after a Dispute Notice is given (or a longer period if the Parties agree in writing), the Parties will engage in negotiations and discussions in order to seek to resolve the dispute. the Parties must participate in the negotiations and discussions referred to in clause 13(c)(i) in good faith and will use all reasonable endeavours to resolve the dispute. The Parties may also appoint third party consultants to assist in the resolution of the dispute. if the Parties cannot resolve the dispute within the period set out in clause 13(c)(i), you may request that the dispute be referred to mediation upon providing a written undertaking to bear all costs involved in the mediation. if you do not undertake to pay all costs involved in the mediation, then myera is not obliged to attend any mediation. If the Parties to the dispute cannot agree on a mediator within seven days after a request under clause 13(c)(iii), upon the request of either Party the president of the Queensland Law Society Inc or that president’s nominee may appoint a mediator. Unless agreed by the mediator and Parties, the mediation must be held within 15 days of a request for the dispute to be referred to mediation being made under clause 13(c)(iii) and must occur on the Sunshine Coast unless otherwise agreed. If a Party to a dispute fails to comply with any aspect of clause 13(c), the other Party does not have to comply with that clause in relation to the dispute. Nothing in these Terms and Conditions obliges myera to attempt the dispute resolution process outlined in clause 13 before it can take action against you.
ILLEGALITY AND SEVERABILITY
The provisions of these Terms and Conditions will so far as possible be construed so as not to be invalid, illegal or unenforceable in any respect but if any provision on its true interpretation is illegal, invalid or unenforceable: that provision will so far as possible be read down to the extent that it may be necessary to ensure that it is not illegal, invalid or unenforceable and as may be reasonable in all the circumstances so as to give it a valid operation of a partial character; or if the provision or part of it cannot be read down the provision or part will be deemed to be void and severable and the remaining provisions of this instrument will not in any way be affected or impaired.
JURISDICTION
You irrevocably acknowledge that despite: your business or residential location; the location of the provision of the Contract Services; or any other geographical indicia, any transaction entered into between you and myera is entered into under the laws of Queensland, Australia. Any dispute that is not resolved in accordance with the process outlined in clause 15 must be resolved in a court of competent jurisdiction in Queensland, Australia.
