Inkredible Pty Ltd Terms & Conditions of Trade
1.1 “Inkredible” shall mean Inkredible Pty Ltd, its successors and assigns or any person acting on behalf of and with the authority of Inkredible Pty Ltd.
1.2 “Client” shall mean the Client or any person acting on behalf of and with the authority of the Client.
1.3 “Guarantor” means that person (or persons), or entity, who agrees to be liable for the debts of the Client on a principal debtor basis.
1.4 “Goods” shall mean Goods supplied by Inkredible to the Client (and where the context so permits shall include any supply of Services as hereinafter defined) and are as described on the invoices, quotation, work authorisation or any other forms as provided by Inkredible Art to the Client.
1.5 “Services” shall mean all services supplied by Inkredible to the Client and includes any advice or recommendations (and where the context so pe rmits shall include any supply of Goods as defined above). 1.6 “Price” shall mean the cost of the Goods as agreed between Inkredible Art and the Client subject to clause 3 of this contract.
1.7 "Final Artwork" Shall mean (and be limited to) a high resolution PDF file.
2.1 Any instructions received by Inkredible from the Client for the supply of Goods and/or the Clients acceptance of Goods supplied by Inkredible shall constitute acceptance of the terms and conditions contained herein.
2.2 Where more than one Client has entered into this agreement, the Clients shall be jointly and severally liable for all payments of the Price.
2.3 Upon acceptance of these terms and conditions by the Client the terms and conditions are irrevocable and can only be amended with the written consent of Inkredible.
2.4 The Client undertakes to give Inkredible at least fourteen (14) days notice of any change in the Clients name, address and/or any other change in the Clients details.
2.5 Where the performance of any contract with the Client requires Inkredible to obtain Goods from a third party, the contract between Inkredible and the Client shall incorporate and shall be subject to the conditions of supply of such Goods to Inkredible and the Client shall be liable for the cost in full of such Goods.
3.1 At Inkredibles sole discretion the Price shall be either;
(a) as indicated on invoices provided by Inkredible to the Client in respect of Goods supplied; or
(b) Inkredibles quoted Price (subject to clause 3.2 and 3.3) which shall be binding upon Inkredible provided that the Client shall accept Inkredibles quotation in writing within thirty (30) days.
3.2 Inkredible reserves the right to change the Price in the event of a variation to Inkredibles quotation.
3.3 Where a quotation has been submitted to the Client without a written brief and/or sighting by Inkredible of the material involved, Inkredible reserves the right to submit a revised quotation if required.
3.4 At Inkredibles sole discretion a deposit may be required.
3.5 Time for payment for the Goods shall be of the essence and will be stated on the invoice or any other forms. If no time is stated then payment shall be due fourteen (14) days following the date of the invoice.
3.6 At Inkredibles sole discretion;
(a) payment shall be due before delivery of the Goods, or
(b) payment for approved Clients shall be made by instalments in accordance with Inkredibles payment schedule.
3.7 Payment will be made by cash, or by cheque, or by bank cheque, or by direct credit.
3.8 GST and other taxes and duties that may be applicable shall be added to the Price except when they are expressly included in the Price.
4.1 The Goods shall be delivered at the Clients cost to either the Clients nominated address or the Clients nominated carrier. The Clients nominated carrier shall be deemed to be the Clients agent. The Client shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery.
4.2 Delivery of the Goods to a third party nominated by the Client is deemed to be delivery to the Client for the purposes of this agreement.
4.3 Inkredible may deliver the Goods by separate instalments. Each separate instalment shall be invoiced and paid for in accordance with the provisions in these terms and conditions.
4.4 The Client shall take delivery of the Goods tendered notwithstanding that the quantity so delivered shall be either greater or less than the quantity purchased provided that;
(a) such discrepancy in quantity shall not exceed 5%, and
(b) the Price shall be adjusted pro rata to the discrepancy.
4.5 The failure of Inkredible to deliver shall not entitle either party to treat this contract as repudiated.
4.6 Inkredible shall not be liable for any loss or damage whatever due to failure by Inkredible to deliver the Goods (or any of them) promptly or at all.
5.1 If Inkredible retains ownership of the Goods nonetheless, all risk for the Goods passes to the Client on delivery.
5.2 If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Client, Inkredible is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by Inkredible is sufficient evidence of Inkredibles rights to receive the insurance proceeds without the need for any person dealing with Inkredible to make further enquiries.
6.1 It is the intention of Inkredible and agreed by the Client that ownership of the Goods shall not pass until:
(a) the Client has paid all amounts owing for the particular Goods, and
(b) the Client has met all other obligations due by the Client to Inkredible in respect of all contracts between Inkredible and the Client.
6.2 Receipt by Inkredible of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised and until then Inkredibles ownership or rights in respect of the Goods shall continue.
6.3 It is further agreed that:
(a) where practicable the Goods shall be kept separate and identifiable until Inkredible shall have received payment and all other obligations of the Client are met; and
(b) until such time as ownership of the Goods shall pass from Inkredible to the Client Inkredible may give notice in writing to the Client to return the Goods or any of them to Inkredible. Upon such notice the rights of the Client to obtain ownership or any other interest in the Goods shall cease; and
(c) Inkredible shall have the right of stopping the Goods in transit whether or not delivery has been made; and
(d) if the Client fails to return the Goods to Inkredible then Inkredible or Inkredibles agent may enter upon and into land and premises owned, occupied or used by the Client, or any premises as the invitee of the Client, where the Goods are situated and take possession of the Goods; and
(e) the Client is only a bailee of the Goods and until such time as Inkredible has received payment in full for the Goods then the Client shall hold any proceeds from the sale or disposal of the Goods on trust for Inkredible; and
(f) the Client shall not deal with the money of Inkredible in any way which may be adverse to Inkredible; and
(g) the Client shall not charge the Goods in any way nor grant nor otherwise give any interest in the Goods while they remain the property of Inkredible; and
(h) Inkredible can issue proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods may not have passed to the Client; and v
(i) until such time that ownership in the Goods passes to the Client, if the Goods are converted into other products, the parties agree that Inkredible will be the owner of the end products.
7.1 The Client hereby disclaims any right to rescind, or cancel the contract or to sue for damages or to claim restitution arising out of any misrepresentation made to the Client by Inkredible and the Client acknowledges that the Goods are bought relying solely upon the Clients skill and judgement.
8.1 The Client shall inspect the Goods on delivery and shall within seven (7) days notify Inkredible of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Client shall afford Inkredible an opportunity to inspect the Goods within a reasonable time following delivery if the Client believes the Goods are defective in any way. If the Client shall fail to comply with these provisions the Goods shall be presumed to be free from any defect or damage. For defective Goods, which Inkredible has agreed in writing that the Client is entitled to reject, Inkredibles liability is limited to either (at Inkredibles discretion) replacing the Goods or repairing the Goods.
9.1 Returns will only be accepted provided that:
(a) the Client has complied with the provisions of clause 8.1; and
(b) Inkredible has agreed in writing to accept the return of the Goods; and
(c) the Goods are returned at the Clients cost within seven (7) days of the delivery date; and
(d) Inkredible will not be liable for Goods which have not been stored or used in a proper manner; and
(e) the Goods are returned in the condition in which they were delivered and with all packaging material, brochures and instruction material in as new condition as is reasonably possible in the circumstances.
10.1 Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the Commonwealth Trade Practices Act 1974 or the Fair Trading Acts in each of the States and Territories of Australia, except to the extent permitted by those Acts where applicable.
11.1 Inkredible agrees to provide the Client Final Artwork,in the form of a high resolution PDF, free and clear of all lien and encumbrances which the Client may lawfully use without infringing upon the rights of others including, and without limiting the generality of the foregoing, any copyright, trade secret patent or trademark rights of any third party.
11.2 The Client warrants that all designs or instructions to Inkredible will not cause Inkredible to infringe any patent, registered design or trademark in the execution of the Clients order.
11.3 The Client hereby authorises Inkredible to utilise images of the Goods designed or drawn by Inkredible in advertising, marketing, or competition material by Inkredible.
11.4 Inkredible reserves the right to exhibit, enter into competition, or showcase in any manner the work produced for the Client.
11.5 Inkredible hereby authorises the Client to retain and reproduce any Goods as approved by the Client and produced for the Clients purposes. This does not extend to the use of concepts and, but not limited to, peripherals developed during the course of the project which were not selected as part of the final design.
11.6 The Client may re-use any royalty-free photographs or illustrations included as part of the finished Goods created for the Clients project. However, any rights-protected photographs or illustrations may not be reproduced without written permission of Inkredible Art and/or payment of additional fees.
12.1 Whilst every care is taken by Inkredible to carry out the instructions of the Client, it is the Clients responsibility to undertake a final proof reading of the Goods, before approval of artwork. Inkredible shall be under no liability whatever for any errors made by the Client in the final proof reading. Should the Clients alterations require additional proofs, this will be invoiced as an extra.
12.2 When style, type or layout is left to Inkredibles judgement, if the Client makes further alterations to the copy, this will be invoiced as an extra.
12.3 When checking a printers proof or PDF on the Clients behalf, Inkredible will do so to the best of Inkredibles ability based on the artwork approved by you. This will be done under a strict all care but no responsibility policy should the end Goods differ to the Clients expectations.
13.1 Interest on overdue invoices shall accrue from the date when payment becomes due daily until the date of payment at a rate of 2.5% per calendar month and such interest shall compound monthly at such a rate after as well as before any judgement.
13.2 If the Client defaults in payment of any invoice when due, the Client shall indemnify Inkredible from and against all costs and disbursements incurred by Inkredible in pursuing the debt including legal costs on a solicitor and own client basis and Inkredibles collection agency costs.
13.3 Without prejudice to any other remedies Inkredible may have, if at any time the Client is in breach of any obligation (including those relating to payment), Inkredible may suspend or terminate the supply of Goods to the Client and any of its other obligations under the terms and conditions. Inkredible will not be liable to the Client for any loss or damage the Client suffers because Inkredible Art exercised its rights under this clause.
13.4 If any account remains overdue after thirty (30) days then an amount of the greater of $20.00 or 10.00% of the amount overdue (up to a maximum of $200) shall be levied for administration fees which sum shall become immediately due and payable.
13.5 Without prejudice to Inkredibles other remedies at law Inkredible shall be entitled to cancel all or any part of any order of the Client which remains unperformed in addition to and without prejudice to any other remedies and all amounts owing to Inkredible shall, whether or not due for payment, become immediately payable in the event that:
(a) any money payable to Inkredible becomes overdue, or in Inkredibles opinion the Client will be unable to meet its payments as they fall due; or
(b) the Client becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.
14.1 Despite anything to the contrary contained herein or any other rights which Inkredible may have howsoever:
(a) where the Client and/or the Guarantor (if any) is the owner of land, realty or any other asset capable of being charged, both the Client and/or the Guarantor agree to mortgage and/or charge all of their joint and/or several interest in the said land, realty or any other asset to Inkredible or Inkredibles nominee to secure all amounts and other monetary obligations payable under the terms and conditions. The Client and/or the Guarantor acknowledge and agree that Inkredible (or Inkredibles nominee) shall be entitled to lodge where appropriate a caveat, which caveat shall be released once all payments and other monetary obligations payable hereunder have been met.
(b) should Inkredible elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Client and/or Guarantor shall indemnify Inkredible from and against all Inkredibles costs and disbursements including legal costs on a solicitor and own client basis.
(c) the Client and/or the Guarantor (if any) agree to irrevocably nominate constitute and appoint Inkredible or Inkredibles nominee as the Clients and/or Guarantors true and lawful attorney to perform all necessary acts to give effect to the provisions of this clause 14.1.
15.1 Inkredible may cancel these terms and conditions or cancel delivery of Goods at any time before the Goods are delivered by giving written notice. On giving such notice Inkredible shall repay to the Client any sums paid in respect of the Price. Inkredible shall not be liable for any loss or damage whatever arising from such cancellation.
15.2 In the event that the Client cancels delivery of Goods the Client shall be liable for any loss incurred by Inkredible (including, but not limited to, any loss of profits) up to the time of cancellation.
16.1 The Client and/or the Guarantor/s agree for Inkredible to obtain from a credit reporting agency a credit report containing personal credit information about the Client and Guarantor/s in relation to credit provided by Inkredible.
16.2 The Client and/or the Guarantor/s agree that Inkredible may exchange information about the Client and the Guarantor/s with those credit providers either named as trade referees by the Client or named in a consumer credit report issued by a credit reporting agency for the following purposes: v
(a) to assess an application by Client; and/or
(b) to notify other credit providers of a default by the Client; and/or
(c) to exchange information with other credit providers as to the status of this credit account, where the Client is in default with other credit providers; and/or
(d) to assess the credit worthiness of Client and/or Guarantor/s.
16.3 The Client consents to Inkredible being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).
16.4 The Client agrees that personal credit information provided may be used and retained by Inkredible for the following purposes and for other purposes as shall be agreed between the Client and Inkredible or required by law from time to time:
(a) provision of Goods; and/or
(b) marketing of Goods by Inkredible its agents or distributors in relation to the Goods; and/or
(c) analysing, verifying and/or checking the Clients credit, payment and/or status in relation to provision of Goods; and/or
(d) processing of any payment instructions, direct debit facilities and/or credit facilities requested by Client; and/or
(e) enabling the daily operation of Clients account and/or the collection of amounts outstanding in the Clients account in relation to the Goods.
16.5 Inkredible may give information about the Client to a credit reporting agency for the following purposes:
(a) to obtain a consumer credit report about the Client; and/or
(b) allow the credit reporting agency to create or maintain a credit information file containing information about the Client.
17.1 When quotations are based on specifications, roughs, layouts, samples, dummies or printed, typewritten or other good copy, any extra work or cost caused by:
(a) any variation by the Client of the Clients original instructions; or
(b) the manuscript copy being, in Inkredibles opinion, poorly prepared; or
(c) the Clients requirements being different from those originally submitted or described, may be charged to the Client and shown as extras on the invoice.
17.2 Unless otherwise agreed, the Client shall bear the cost of fonts, or colour proofs, or artwork, specially bought at the Clients request for use with in the Clients Goods.
17.3 Inkredible shall be under no liability whatever to the Client for any variation (beyond the reasonable control of Inkredible) in colours between the approved prototype and the finished Goods.
17.4 While Inkredible does offer professional copywriting as a Service, it is not included in the quotation unless specifically listed.
17.5 Finished or Final Art is supplied in the form of a high resolution PDF. Supplying of draft, working and native artwork files is not included.
18.1 If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
18.2 These terms and conditions and any contract to which they apply shall be governed by the laws of New South Wales and are subject to the jurisdiction of the courts of New South Wales.
18.3 Inkredible shall be under no liability whatever to the Client for any indirect loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by Inkredible of these terms and conditions.
18.4 In the event of any breach of this contract by Inkredible the remedies of the Client shall be limited to damages. Under no circumstances shall the liability of Inkredible exceed the Price of the Goods.
18.5 The Client shall not be entitled to set off against or deduct from the Price any sums owed or claimed to be owed to the Client by Inkredible Art.
18.6 Inkredible may license or sub-contract all or any part of its rights and obligations without the Clients consent.
18.7 Inkredible reserves the right to review these terms and conditions at any time. If, following any such review, there is to be any change to these terms and conditions, then that change will take effect from the date on which Inkredible notifies the Client of such change.
18.8 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock out, industrial action, fire, flood, drought, storm or other event beyond the reasonable control of either party.
Inkredible IS A PTY LTD COMPANY LICENSED TO UTILIZE AND DISTRIBUTE ADOBE BUSINESS CATALYST ONLINE SERVICES.
BY SIGNING A HOSTING AGREEMENT FOR Inkredible, YOU ARE ENTERING INTO A CONTRACT WITH Inkredible AND BUSINESS CATALYST AND AGREE TO THE FOLLOWING TERMS AND CONDITIONS (THE "AGREEMENT") GOVERNING YOUR USE OF BUSINESS CATALYST'S ONLINE SERVICE (THE "SERVICE"). IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS "YOU" OR "YOUR" SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT PROCEED AND MAY NOT USE THE SERVICE.
You understand that Inkredible is licensed distributor of Business Catalyst and agree to indemnify Inkredible from and against any and all claims, costs, damages losses, liabilities and expenses (including attorneys' fees and costs) arising out of or in connection with Business Catalyst.
As part of the Service, Business Catalyst will provide you with use of the Service, including a browser interface, plug-in into some 3rd party products, web services access and data encryption, transmission, access and storage. Your registration for, or use of, the Service shall be deemed to be your agreement to abide by this Agreement including any materials available on the Business Catalyst website incorporated by reference herein, including but not limited to Business Catalyst's privacy and security policies. For reference, a Definitions section is included at the end of this Agreement.
Business Catalyst's privacy policies may be viewed at http://www.businesscatalyst.com/privacypolicy. Business Catalyst reserves the right to modify its privacy and security policies in its reasonable discretion from time to time. Individual users when they initially log in, will be asked whether or not they wish to receive marketing, weekly reports and other non-critical Service-related communications from Business Catalyst from time to time. They may opt out of receiving such communications at that time or at any subsequent time by choosing the unsubscribe link from such communication. Note that because the Service is a hosted, online application, Business Catalyst occasionally may need to notify all users of the Service (whether or not they have opted out as described above) of important announcements regarding the operation of the Service.
Business Catalyst hereby grants you a non-exclusive, non-transferable, worldwide right to use the Service, solely for your own internal business purposes, subject to the terms and conditions of this Agreement. All rights not expressly granted to you are reserved by Business Catalyst and its licensors.You shall not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Service or the Content in any way; (ii) modify or make derivative works based upon the Service or the Content; (iii) create Internet "links" to the Service or "frame" or "mirror" any Content on any other server or wireless or Internet-based device; or (iv) reverse engineer or access the Service in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the Service, or (c) copy any ideas, features, functions or graphics of the Service. User licenses cannot be shared or used by more than one individual User but may be reassigned from time to time to new Users who are replacing former Users who have terminated employment or otherwise changed job status or function and no longer use the Service.You may use the Service only for your internal business purposes and shall not: (i) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (ii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or violative of third party privacy rights; (iii) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (iv) interfere with or disrupt the integrity or performance of the Service or the data contained therein; or (v) attempt to gain unauthorized access to the Service or its related systems or networks.
You are responsible for all activity occurring under your User accounts and shall abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with your use of the Service, including those related to data privacy, international communications and the transmission of technical or personal data. You shall: (i) notify Business Catalyst immediately of any unauthorized use of any password or account or any other known or suspected breach of security; (ii) report to Business Catalyst immediately and use reasonable efforts to stop immediately any copying or distribution of Content that is known or suspected by you or your Users; and (iii) not impersonate another Business Catalyst user or provide false identity information to gain access to or use the Service.
Business Catalyst will make best endeavors to backup Customer Data every 24 hours. Business Catalyst will not at any time retrieve Customer Data if it is accidentally or otherwise delete by you. In the unlikely case where Customer Data is lost because of software or hardware malfunction, Business Catalyst will endeavor to restore to the most recent successful backup. Business Catalyst takes no responsibility whatsoever whether implied or otherwise for the quality or frequency of Customer Data backup.Business Catalyst does not own any data, information or material that you submit to the Service in the course of using the Service ("Customer Data"). You, not Business Catalyst, shall have sole responsibility for the input accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data, and Business Catalyst shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Customer Data. In the event this Agreement is terminated (other than by reason of your breach), Business Catalyst will make available to you a file of the Customer Data within 30 days of termination if you so request at the time of termination. Business Catalyst reserves the right to withhold, remove and/or discard Customer Data without notice for any breach, including, without limitation, your non-payment. Upon termination for cause, your right to access or use Customer Data immediately ceases, and Business Catalyst shall have no obligation to maintain or forward any Customer Data.
Business Catalyst alone (and its licensors, where applicable) shall own all right, title and interest, including all related Intellectual Property Rights, in and to the Business Catalyst Technology, the Content and the Service and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you or any other party relating to the Service. This Agreement is not a sale and does not convey to you any rights of ownership in or related to the Service, the Business Catalyst Technology or the Intellectual Property Rights owned by Business Catalyst. The Business Catalyst name, the Business Catalyst logo, and the product names associated with the Service are trademarks of Business Catalyst or third parties, and no right or license is granted to use them.
During use of the Service, you may enter into correspondence with, purchase goods and/or services from, or participate in promotions of advertisers or sponsors showing their goods and/or services through the Service. Any such activity, and any terms, conditions, warranties or representations associated with such activity, is solely between you and the applicable third-party. Business Catalyst and its licensors shall have no liability, obligation or responsibility for any such correspondence, purchase or promotion between you and any such third-party. Business Catalyst does not endorse any sites on the Internet that are linked through the Service. Business Catalyst provides these links to you only as a matter of convenience, and in no event shall Business Catalyst or its licensors be responsible for any content, products, or other materials on or available from such sites. Business Catalyst provides the Service to you pursuant to the terms and conditions of this Agreement. You recognize, however, that certain third-party providers of ancillary software, hardware or services may require your agreement to additional or different license or other terms prior to your use of or access to such software, hardware or services.
You shall pay all fees or charges to your account in accordance with the setup and ongoing fees and charges, and billing terms in effect at the time a fee or charge is due and payable. The amount payable will be equal to the setup and ongoing charges related to your plan plus any excess number of total User licenses requested times the per User license fee currently in effect. Payments may be made, in advance, monthly, consistent with the Initial Term (the first License Term), or as otherwise mutually agreed upon. You are responsible for paying for all User licenses ordered for the entire License Term, whether or not such User licenses are actively used. You must provide Inkredible Art with valid credit card or approved purchase order information as a condition to signing up for the Service. An authorized License Administrator may add user licenses by executing an additional written Order Form. Added user licenses will be subject to the following: (i) added user licenses will be coterminous with the preexisting License Term (either Initial Term or renewed License Term); (ii) the license fee for the added licenses will be the then current, generally applicable license fee; (iii) where monthly License Terms are enacted user licenses added in the middle of a billing month will be charged in full for that billing month. Inkredible reserves the right to modify its fees and charges and to introduce new charges at any time, upon at least 30 days prior notice to you, which notice may be provided by email. All pricing terms are confidential, and you agree not to disclose them to any third party. Any and all fees paid in advance are not refundable if you cease to use the Service.
The maximum disk storage space provided to you at no additional charge is dependent on the plan that you choose. If the amount of disk storage required exceeds these limits, you will be charged the then-current storage fees.
The maximum amount of incoming traffic to your website is 100GB per month. Outgoing traffic from your website is not chargeable unless the ratio of incoming to outgoing traffic from your website exceeds 1:10 (i.e. 10GB inbound and 100GB outbound). Inkredible reserves the right to negotiate an increased monthly fee effective from the next billing period should this ratio be exceeded.
The maximum number of email marketing broadcasts you may undertake per month is 10,000 if email marketing is part of your plan. If you require a larger broadcast per month, you will be charged the then-current email marketing fees.
The maximum number of free SMS messages that you can use is dependent on the plan that you choose. You will be charged for excess SMS messages sent in the next billing period at the then-current per SMS message fee.
Any failure by Business Catalyst to so notify you shall not affect your responsibility for such additional storage and traffic charges. Business Catalyst reserves the right to establish or modify its general practices and limits relating to storage of and traffic relating to Customer Data.
Inkredible charges and collects in advance for use of the Service. Inkredible will automatically renew the License Term and bill your credit card or issue an invoice to you every month for monthly licenses. The renewal charge will be equal to the then-current plan fee plus any excess User licenses times the user license fee in effect during the prior term, unless Inkredible has given you at least 30 days prior written notice of a fee change, which shall be effective upon renewal and thereafter. Fees for other services will be charged on an as-quoted basis. Inkredible’s fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and you shall be responsible for payment of all such taxes, levies, or duties.
You agree to provide Inkredible with complete and accurate billing and contact information. This information includes your legal company name, street address, email address, and name and telephone number of an authorized billing contact and License Administrator. You agree to update this information within 30 days of any change to it. If the contact information you have provided is false or fraudulent, Inkredible Art reserves the right to terminate your access to the Service in addition to any other legal remedies.v
Unless Business Catalyst in its discretion determines otherwise: (i) entities with headquarters in United States will be billed in U.S. dollars ("U.S. Customers"); (ii) entities with headquarters in Australia will be billed in Australian dollars; and (iii) all other entities will be billed in U.S. dollars, Euros or local currency (if available) ("Non-U.S./Australia Customers").
If you believe your bill is incorrect, you must contact Inkredible in writing within 60 days of the invoice date of the invoice containing the amount in question to be eligible to receive an adjustment or credit.
In addition to any other rights granted to Inkredible herein, Inkredible reserves the right to suspend or terminate this Agreement and your access to the Service, if your account becomes delinquent (falls into arrears). Access to the Administration interface will be suspended immediately if an invoice is delinquent and is re-enabled when such delinquent invoices are paid in full. Inkredible reserves the right to suspend or terminate your public website if delinquent invoices are 60 days overdue. Delinquent invoices are subject to interest of 1.0% per month on any outstanding balance, or the maximum permitted by law, whichever is less, plus all expenses of collection. You will continue to be charged for User licenses during any period of suspension. If you or Inkredible initiates termination of this Agreement, you will be obligated to pay the balance due on your account computed in accordance with the Charges and Payment of Fees section above. You agree that Inkredible may charge such unpaid fees to your credit card or otherwise bill you for such unpaid fees.
Inkredible reserves the right to impose a reconnection fee in the event you are suspended and thereafter request access to the Service. You agree and acknowledge that Business Catalyst has no obligation to retain Customer Data and that such Customer Data may be irretrievably deleted if your account is 30 days or more delinquent.
This Agreement commences on the Effective Date. The Initial Term (the first License Term) will be as you elect during the online subscription process or as otherwise mutually agreed upon. Your obligation to pay for the service begins from the Effective Date and invoices must be paid according to the then current payment terms. Access to the Administration interface will be suspended immediately if an invoice is delinquent. Upon the expiration of the Initial Term, this Agreement will automatically renew for a successive License Term equal in duration to the Initial Term at Inkredible’s then current fees, and payable in advance. Either party may terminate this Agreement or reduce the number of User licenses, effective only upon the expiration of the then current License Term, by notifying the other party in writing at least fourteen (14) business days prior to the date of the invoice for the following term. In the case of free trials, notifications provided through the Service indicating the remaining number of days in the free trial shall constitute notice of termination. In the event this Agreement is terminated (other than by reason of your breach), Business Catalyst will make available to you a file of the Customer Data within 30 days of termination if you so request at the time of termination. You agree and acknowledge that Business Catalyst has no obligation to retain the Customer Data, and may delete such Customer Data irretrievably, more than 30 days after termination.
Any breach of your payment obligations or unauthorized use of the Business Catalyst Technology or Service will be deemed a material breach of this Agreement. Business Catalyst, in its sole discretion, may terminate your password, account or use of the Service if you breach or otherwise fail to comply with this Agreement. In addition, Business Catalyst may terminate a free account at any time in its sole discretion. You agree and acknowledge that Business Catalyst has no obligation to retain the Customer Data, and may delete such Customer Data, if you have materially breached this Agreement, including but not limited to failure to pay outstanding fees, and such breach has not been cured within 30 days of notice of such breach.
As part of the Service, you may be able to subscribe to extra features such as real-time alerts via SMS and email marketing. Each service may have a fixed monthly charge as well as data usage charges. In the case where usage charges apply, these will be calculated automatically and billed at the end of each calendar month or as mutually agreed based on the then-current Inkredible pricing.
Business Catalyst will provide a service level of 99.98% uptime per month excluding scheduled downtime on average of 1 hour per week for system maintenance and upgrades. The service level comprises of your ability to access Customer Data via a web-browser interface and any other reliability, timeliness, quality, suitability, truth, availability or completeness of the Service is not covered in this agreement. Scheduled downtimes are set between the hours 20:00 and 06:00 of Australian Eastern Standard Time. In the unlikely event where Service Level Agreements are not met for any given month, a pro-rata rebate will be applied against the next License Term period. Normal billing will resume from the following period. No rebate applies nor is payable if no future billing period exists. Business Catalyst will use best endeavors to ensure the delivery of real-time alerts. Business Catalyst guarantees to send real-time alerts instantly but cannot guarantee their delivery by 3rd party providers and aggregators.
Email marketing broadcasts will be undertaken at anytime during the date specified for the broadcast and may take up to 24 hours to deliver from commencement of the broadcast. Email marketing broadcasts cannot be sent unless approved by Business Catalyst and may take up to 6 hours for approval.
You grant Business Catalyst the right to display your brand including company name and logo on its website and other marketing communications.
Each party represents and warrants that it has the legal power and authority to enter into this Agreement. Business Catalyst represents and warrants that it will provide the Service in a manner consistent with general industry standards reasonably applicable to the provision thereof and that the Service will perform substantially in accordance with the online Business Catalyst help documentation under normal use and circumstances. You represent and warrant that you have not falsely identified yourself nor provided any false information to gain access to the Service and that your billing information is correct.
You shall indemnify and hold Business Catalyst, its licensors and each such party's parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys' fees and costs) arising out of or in connection with: (i) a claim alleging that use of the Customer Data infringes the rights of, or has caused harm to, a third party; (ii) a claim, which if true, would constitute a violation by you of your representations and warranties; or (iii) a claim arising from the breach by you or your Users of this Agreement, provided in any such case that Business Catalyst (a) gives written notice of the claim promptly to you; (b) gives you sole control of the defense and settlement of the claim (provided that you may not settle or defend any claim unless you unconditionally release Business Catalyst of all liability and such settlement does not affect Business Catalyst's business or Service); (c) provides to you all available information and assistance; and (d) has not compromised or settled such claim.Business Catalyst shall indemnify and hold you and your parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys' fees and costs) arising out of or in connection with: (i) a claim alleging that the Service directly infringes a copyright, a U.S. patent issued as of the Effective Date, or a trademark of a third party; (ii) a claim, which if true, would constitute a violation by Business Catalyst of its representations or warranties; or (iii) a claim arising from breach of this Agreement by Business Catalyst; provided that you (a) promptly give written notice of the claim to Business Catalyst; (b) give Business Catalyst sole control of the defense and settlement of the claim (provided that Business Catalyst may not settle or defend any claim unless it unconditionally releases you of all liability); (c) provide to Business Catalyst all available information and assistance; and (d) have not compromised or settled such claim. Business Catalyst shall have no indemnification obligation, and you shall indemnify Business Catalyst pursuant to this Agreement, for claims arising from any infringement arising from the combination of the Service with any of your products, service, hardware or business process(s).
EXCEPT FOR WHAT IS STATED IN SECTION 14 BUSINESS CATALYST AND ITS LICENSORS MAKE NO REPRESENTATION, WARRANTY, OR GUARANTEE AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICE OR ANY CONTENT EXCEPT FOR WHAT IS STATED. BUSINESS CATALYST AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (B) THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE, (D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (E) ERRORS OR DEFECTS WILL BE CORRECTED, OR (F) THE SERVICE OR THE SERVER(S) THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE SERVICE AND ALL CONTENT IS PROVIDED TO YOU STRICTLY ON AN "AS IS" BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY BUSINESS CATALYST AND ITS LICENSORS.
EXCEPT FOR WHAT IS STATED IN SECTION 14 BUSINESS CATALYST'S SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. BUSINESS CATALYST IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.20. Limitation of Liability
vIN NO EVENT SHALL EITHER PARTY'S AGGREGATE LIABILITY EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM YOU IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. IN NO EVENT SHALL EITHER PARTY AND/OR ITS LICENSORS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THIS SERVICE, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICE, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE SERVICE, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE IN THE CONTENT, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY'S LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental, consequential or certain other types of damages, so the exclusions set forth above may not apply to you.
This site provides services and uses software and technology that may be subject to United States export controls administered by the U.S. Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, and other U.S. agencies and the export control regulations of Australia, Switzerland and the European Union. The user of this site ("User") acknowledges and agrees that the site shall not be used, and none of the underlying information, software, or technology may be transferred or otherwise exported or re-exported to countries as to which the United States, Australia, Switzerland and/or the European Union maintains an embargo (collectively, "Embargoed Countries"), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury's List of Specially Designated Nationals or the U.S. Department of Commerce's Table of Denial Orders (collectively, "Designated Nationals"). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. By using the Service, you represent and warrant that you are not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. You agree to comply strictly with all U.S., Australian, Swiss and European Union export laws and assume sole responsibility for obtaining licenses to export or re-export as may be required.
This site may use encryption technology that is subject to licensing requirements under the U.S. Export Administration Regulations, 15 C.F.R. Parts 730-774 and Council Regulation (EC) No. 1334/2000
Business Catalyst and its licensors make no representation that the Service is appropriate or available for use in other locations. If you use the Service from outside the United States of America or Australia, you are solely responsible for compliance with all applicable laws, including without limitation export and import regulations of other countries. Any diversion of the Content contrary to United States or Australian law is prohibited. None of the Content, nor any information acquired through the use of the Service, is or will be used for nuclear activities, chemical or biological weapons, or missile projects, unless specifically authorized by the United States or Australia for such purposes.
Business Catalyst may give notice by means of a general notice on the Service, electronic mail to your email address on record in Business Catalyst's account information, or by written communication sent by first class mail or pre-paid post to your address on record in Business Catalyst's account information. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre-paid post) or 12 hours after sending (if sent by email). You may give notice to Business Catalyst (such notice shall be deemed given when received by Business Catalyst) at any time by any of the following: letter sent by confirmed facsimile to Business Catalyst at the following fax numbers (whichever is appropriate): +61 2 9011 1098 (for All Customers); letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail to Business Catalyst at the following addresses (whichever is appropriate): Business Catalyst Systems, Level 8, 99 Mount Street, North Sydney NSW 2060 AUSTRALIA, in either case, addressed to the attention of: Chief Executive Officer.
Business Catalyst reserves the right to modify the terms and conditions of this Agreement or its policies relating to the Service at any time, effective upon posting of an updated version of this Agreement on the Service. You are responsible for regularly reviewing this Agreement. Continued use of the Service after any such changes shall constitute your consent to such changes.
This Agreement may not be assigned by you without the prior written approval of Business Catalyst but may be assigned without your consent by Business Catalyst to (i) a parent or subsidiary, (ii) an acquirer of assets, or (iii) a successor by merger. Any purported assignment in violation of this section shall be void. Any actual or proposed change in control of you that results or would result in a direct competitor of Business Catalyst directly or indirectly owning or controlling 50% or more of you shall entitle Business Catalyst to terminate this Agreement for cause immediately upon written notice.
This Agreement shall be governed by the laws of New South Wales, Australia, without regard to the choice or conflicts of law provisions of any jurisdiction, and any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Service shall be subject to the exclusive jurisdiction of the state and federal courts located in NSW Australia. No text or information set forth on any other purchase order, preprinted form or document (other than an Order Form, if applicable) shall add to or vary the terms and conditions of this Agreement. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. No joint venture, partnership, employment, or agency relationship exists between you and Business Catalyst as a result of this agreement or use of the Service. The failure of Business Catalyst to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by Business Catalyst in writing. This Agreement, together with any applicable Order Form, comprises the entire agreement between you and Business Catalyst and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein.
If you have questions regarding this Agreement or wish to obtain additional information, please contact Business Catalyst.