Business Name: Success Wizards
29 Horseshoe Road Terranora, NSW 2486 ABN: 51 951 259 211
Phone: 1300 230 474
All agreements are governed by the laws of Queensland and the parties submit to the non-exclusive jurisdiction of the courts of that jurisdiction.
(a) References to legislation or provisions of legislation include changes or re-enactments of the legislation and statutory instruments and regulations issued under the legislation;
(b) Words denoting the singular include the plural and vice versa, words denoting individuals or persons include bodies corporate and vice versa, references to documents or agreements also mean those documents
(c) Grammatical forms of defined words or phrases have corresponding meanings;
(d) Parties must perform their obligations on the dates and times fixed by reference to the capital city of Queensland;
(e) Reference to an amount of money is a reference to the amount in the lawful currency of the Commonwealth of Australia;
(f) If the day on or by which anything is to be done is a Saturday, a Sunday or a public holiday in the place in which it is to be done, then it must be done on the next business day;
(g) References to a party are intended to bind their executors, administrators and permitted transferees; and
(h) Obligations under this agreement affecting more than one party bind them jointly and each of them severally.
(a) Customer means the customer referred to in this agreement;
(b) Force Majeure Event means:
(i) an act of God;
(ii) acts of war, riots, terrorism, vandalism;
(iii) strike, embargo, ban, industrial disturbance; or
(iv) a law, rule or regulation or a form of governmental action prohibiting performance.
(c) GST has the meaning given by section 195-1 of the GST Act or any replacement or other relevant legislation and regulations;
(d) GST Act means A New Tax System (Goods and Services Tax) Act 1999 (as amended);
(e) Intellectual property means all forms of intellectual property rights throughout the world – letters patent, trademarks, designs, copyrights, inventions, drawings, computer programs, confidential information, trade secrets, know-how and rights of a similar nature existing anywhere in the world, whether registered or unregistered;
(f) Service Provider means Success Wizards, 29 Horseshoe Road Terranora, NSW 2486 ABN: 51 951 259 211.
(g) Services mean the services listed in this agreement;
(h) Supplier means any party treated by the GST Act as making a Supply under this agreement;
(i) System means the sales, marketing and automation system provided by Infusionsoft; and
(j) Supply has the meaning given to that term in the GST Act, and Supplies has a corresponding meaning.
- Appointment and Fees
(a) Subject to the Service Provider performing the Services in accordance with the terms herein, the Customer shall pay the Service Provider in accordance with this agreement.
(b) The Customer shall pay the Service Provider for interest on any debts owed to the Service Provider at the rate specified in this Agreement and any taxes, fees and expenses related to collecting debts.
(c ) The Customer shall pay the Service Provider on the due date each month of the contract duration, and should the Customer fail to pay the monthly amount due within 5 business days, the Service Provider will cease work and the debt recovery process will commence.
- Scope of Services
(a) The Service Provider is responsible for completion of the services described in this agreement, which may be varied by the Service Provider as circumstances dictate or with changes in the Customer’s operations.
(b) The Service Provider will act with good faith in all of the Service Provider’s dealings with the Customer and, whilst performing the services, the Service Provider will not intentionally do anything which is harmful to the Customer.
- Duration of the Contract Term
The agreement has effect from the date of execution and continues until the agreement is completed according to the proposal, or terminated in accordance with clauses 13 or 19.
- Provision of Labour and Equipment of the Service Provider
Subject to this clause, the Service Provider must provide at its own cost and expense all labour to perform the Services in accordance with this agreement.
The parties covenant on behalf of themselves and their financial, legal and other advisors that they will keep confidential and not divulge either directly or indirectly to any person any information relating to the business, processes, systems or affairs of the other party which is of a confidential nature or which is not otherwise in the public domain, including the terms of this agreement, save to the extent that the disclosure may be required by statute or may reasonably be required for the purpose of enabling the parties to fulfil their respective obligations under this agreement or as may otherwise be required by law. This clause shall have force after the termination or expiry of this agreement.
- Access to systems
(a) Where required, the Customer must provide the Service Provider with access to all Customer systems and associated information that the Service Provider requires to perform its obligations under this agreement.
(a) The Service Provider must only access the systems and associated information for the purposes of providing the Services.
- Customer warranties
The Customer warrants at all times during the contract term that:
(b) If it represents that it is a company, that it is a company duly incorporated in Australia and has the power and authority to enter into this agreement on the terms set out herein;
(c) This agreement constitutes a legally valid and binding obligation on the Customer, enforceable in accordance with its terms;
(d) It has exercised its own judgment in entering into this agreement and has not relied on any warranty or representation made by the Service Provider, its officers, employees or agents, save as specifically set out in this agreement; and
(e) It is authorised to provide the Service Provider with access to the systems and associated information referred to in clause 8.
- Service Provider warranties
The Service Provider warrants at all times during the contract term that:
(a) It is a company duly incorporated in Australia and has the power and authority to enter into this agreement on the terms set out herein;
(b) This agreement constitutes a legally valid and binding obligation on the Service Provider, enforceable in accordance with its terms;
(c) It will exercise all due care, skill and attention in providing the services; and
(d) It will comply with all legal requirements as may from time to time apply to the provision of the services.
- Release, discharge and indemnity
The Customer agrees that as the Service Provider does not control the design, performance, uptime or other administrative aspects in the Infusionsoft System, the Customer acts on its own risk and hereby releases and discharges the Service Provider, its officers, employees and agents from all claims and demands of any kind whatsoever and from any liability including, without limitation, liability for negligence which may arise in respect of any accident, damage, destruction, debt or injury to the Customer, its employees, agents or permitted subcontractors or to any property of the Customer, its employees, agents or permitted sub-contractors which occurs in relation to the provision of the Services, save where such liability arises from any willful or negligent act or omission of the Service Provider, its employees or agents.
- No assignment
This agreement is personal to the Customer and must not be assigned without the prior written consent of the Service Provider. Such consent may be given or withheld at the Service Provider’s absolute discretion. Any assignment or purported assignment shall be void and of no effect.
(a) This agreement may be terminated by the Service Provider without notice in the event of the Customer breaching a term of this agreement.
(b) This agreement may be terminated by the Customer in the event of the Service Provider breaching a term of this agreement and failing to remedy the breach within 14 days after having received notice in writing of the breach.
(c) Either party may terminate this agreement by written notice to the other party if the other party becomes subject to insolvency proceedings or events.
(d) Either party may terminate this agreement by providing 30 days notice in writing to the other party.
(e) Where the Customer terminates this agreement in accordance with clause 13(d), any payments made to the Service Provider are not refundable.
- Dispute resolution
(a) If a dispute arises, before any proceeding is commenced the party claiming that a dispute has arisen must give 14 days notice to the other party setting out the dispute and seeking discussion and compromise to resolve the dispute.
(b) If after 14 days the dispute is not resolved then it must be referred to mediation on the same terms as those ordered by the Supreme Court of Queensland and the costs of the mediation shall be borne by the parties equally.
(c) Nothing in this clause will prevent either party from seeking urgent interlocutory relief.
- Goods and Services Tax (GST)
(a) Unless stated otherwise, all prices are exclusive of GST.
(b) To the extent that any Supply made under or in connection with this agreement is a taxable supply, including by reason of a determination by the Commissioner of Taxation, a court or a tribunal, the GST exclusive consideration to be paid or provided for that taxable supply is increased by the amount of any GST payable in respect of that taxable supply. The GST amount must be paid by the party which is the recipient of the taxable supply to the Supplier within 10 Business Days of receiving a valid tax invoice.
(c) If a party is required to make any payment or reimbursement, that payment or reimbursement must be reduced by the amount of any input tax credits or reduced input tax credits to which the other party (or the representative member of a GST group of which it is a member) is entitled for any acquisition relating to that payment or reimbursement.
- Intellectual property
The Customer acknowledges that the intellectual property in all works of the Service Provider or their servants or agents in the course of the fulfilment of the Service Provider’s obligations hereunder are the absolute property of the Service Provider.
- Relationship of the parties
The parties acknowledge that this agreement is intended as a contract of service and not any other relationship and, in particular, not the relationship of employer and employee, agency or the relationship of partnership.
This agreement may be executed in any number of counterparts each of which will be an original but such counterparts together will constitute one and the same instrument and the date of the agreement will be the date on which it is executed by the last party.
- Force Majeure
(a) If a party is directly and adversely affected by a Force Majeure Event, that party is excused from performing its obligations under this agreement (other than its obligation to pay money and provide requisite notice) for the period of delay arising directly from that Force Majeure Event.
(b) If a Force Majeure Event prevents performance of one or more of the obligations under this agreement and the delay caused by the Force Majeure Event continues for a period of 20 Business Days, either party to this agreement may by written notice to the other party terminate this agreement without liability for breach of contract.
- Entire Agreement
The agreement contains the entire understanding between the parties with respect of the subject matter contained it in. Any previous arrangements, agreements, representations and warranties, expressed or implied, are superseded by this agreement.
If a provision in this agreement is held to be illegal, invalid or void, it must be read down to the extent necessary so that it is not illegal, invalid or void. If it is not possible to read down the provision in this fashion, that provision is severable without affecting the balance of the provision or the Agreement.
This agreement may only be varied or substituted by written deed executed by the parties.
Each party will pay their own costs in relation to these terms and conditions.